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THE     PRINCIPLES 


I 


u 


OF    THE 


AMERICAN" 


LAW  OF  BAILMENTS 

A  Companion  to  thk  author's  Work  on  Contuacts. 


:-n 


BY 


JOHN    D.   LAWSON,   LL.D., 

Profestor  of  Common  Law  in  the  University  of  the  State  of  Mijsouri. 


ST.  LOUIS: 
THE  F.  H.  THOMAS  LAW  BOOK  CO. 

1895. 


Entered  according  to  Act  of  Congress,  in  the  year  1895,  by 

JOHN  D.  LAWSON, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


8T.  LOUIS: 

NixonJonbs  Pro.  Co.,  21")  Pine  Street. 
1896. 


w 


U\ 


V) 


TABLE  OF  CONTENTS 


CHAPTER    I. 
PRELIMINARY. 


Section  1.  The  History  of  Bailment  Law. 

2.  Tlie  Enslisli  Vv'ritL'is. 

;{.  Tlie  American  Writers. 

4.  Plau  and  Arrangement  of  tliis  Work. 

CHAPTER    II. 
THE  TWO  GREAT  DIVISIONS. 

Section  5.    What  a  Bailment  is. 

6.     The  Classes  of  Bailments. 


DIVISION    I. 


THE  ORDINARY  BAILMENT. 

CHAPTER    III. 
THE  GENERAL  PRINCIPLES. 

Skction  7.  Subject  Matter  of  Bailment  a  Chattel. 

8.  The  Test  of  a  Bailment. 

1).  The  Parties  to  a  Bailmi'nt. 

10.  Consideration   in   Bailments. 

11.  The  Care  and  Dili^'enet'  Required  of  Bailees. 

12.  NeKligenee  Defined   and   Illustrated. 

13.  Modification  of  Liability  by  Agreement. 

\i.  :Modilieation  of  Liability  by  Acts  or  Conduct  of  Bailor, 

lo.  The  Bailee's  Spi-cial  Property  in  the  Chattel. 

10.  Negligenw  Immaterial  in  Certain  Cases. 

17.  Bailee's  Property  Limited   to  tlie  Trust. 

iii 


TABLK   OF  CONTENTS. 


Section  18. 
19. 
20. 
21. 
22. 
23. 
24. 
25. 
26. 
27. 
28. 
29. 


ThP  Trust  Dutio8  of  tho  Bailee. 

(a)  To  Hold  of  the  Bailor. 

(b)  To  Follow  His  lustrucTious. 

(c)  To  Follow  the  Coutract. 

(d)  To  Ue-ilollver  the  Thing. 
Excuses  for  Non-Delivery. 
The  Duties  of  tho  Bailor. 
Compensation  and  Reimbursement. 
The  Lien  upon  a  Chattel  for  Services. 

The  Bailee's  Lien  (Jenerally. 

Joint  Bailors  and  Bailees. 

The  Termination  of  the  Bailment. 


CHAPTER    IV. 
THE  BAILMENT  FOR  THE  BAILOR'S  BENEFIT. 

-—5;:SsS"  "?;";— y  Absent 

32  Any  Indirect  Benetit  Sufflcient. 

33  Liability  of  Gratuitous  Bailees. 

34.  Effect  of  Bailee's  Previous  Request. 

35.  Skilled  Bailees. 

CHAPTER    V. 
THE  BAILMENT  FOR  THE  BAILEE'S  BENEFIT. 

SECTION  3(5.    The  Gratuitous  Loan. 

37.  Benetit  Must  be  all  on  Borrower  s  Side. 

38.  Liability  of  Borrower. 

CHAPTER    VI. 

THE  MUTUAL  BENEFIT  BAILMENT. 

Section  39.    The  Classes  of  Mutual  Bencflt  Bailments. 
40.    The  Standard  of  Care  and  Responsibility. 


IV 


TABLE   OF   CONTENTS. 

(a)    Hire  of  Things. 

Section  41.    The  Hire  of  the  Use  of  a  Thlnti. 

42.  The  Hirer's  General  Uospousibility. 

(b)    Hire  of  Labor  and  Services. 

43.  The  Woikiuau,  Manufacturer.  Laborer  or  Artizau. 

(c)    Hire  of  Care  or  Cus'idy. 

44.  The  General  Principle. 

45.  The  Aslster. 

46.  The  Liveryman. 

47.  The  Warehiniseraan. 

48.  The  Whar finger. 

(d)    Hire  of  Carriage, 

49.  The  Private  Carrier. 

CHAPTER    VII. 
THE  MUTUAL  BENEFIT  BAILMENT  (CONTINUED)  THE  PLEDGE. 


Skction  50. 
51. 
52. 
.53. 
51. 
55. 
50. 
57. 
58. 
50. 
GO. 
Gl. 
62. 
63. 
64. 
65. 
66. 
67. 
68. 
69. 
70. 
71. 


PleilRe  Defined. 

Distinction  between  Pledge  and  Chattel  Mortgage. 

What  may  be  Pledged. 

The  Pledged  Thing. 

The  Pledgor's  Title. 

The  Debt  or  Engagement. 

The  Increase  and  Profits. 

The  Pledgee's  Uiglit  of  Transfer. 

The  Pledgee's  Duties  in  Uegard  to  the  Pledge. 

The  Pledge  an  Additional  liemedy. 

The  Right  to  Redeem. 

The  Pledgee's  Duty  to  Re-deliver. 

The  Pledgee's  Right  to  Sell  on  Default. 

Pledgee  Cannot  Pui-chuse. 

Irregular  Sale  may  be  Ratified. 

Power  to  Sell  not  Mandatary. 

Pledgee  not  Liable  for  Consequences  of  Sale,  When. 

The  Pledgor's  Right  to  the  Surplus. 

The  Pledgee's  Right  of  Action. 

The  Pledgor's  Right  of  Action. 

The  Pledge,  How  E.Ktinguished. 

Effect  of  Death  of  Either  Party. 


TABLK   OF   CONTENTS. 

DIVISION    II. 
THE  EXCEPTIONAL  BAILMENT. 

PART  I. 

THE  INNKEEPER. 

CHAPTER    VIII. 
INNKKErEKS. 

Suction  72.  Who  are  Innkeepers. 

7n.  Duty  to  Receive  the  ruhUc. 

74.  Duty  only  Towjiril  CJuests. 

7r>.  Duty  as  to  Guest's  Person. 

76.  An  Insurer  of  Cuest's  I'roperty. 

77.  At  what  Time  Lia1)ility  Bi'j;ins. 

78.  At  what  Time  Liability  Ends. 

79.  For  what  Troix-rty  Kesponsil)le. 

80.  Contributory  X(>^.'lifience  of  (iuest. 

81.  Limitation  of  Innkeeper's  Liability. 

82.  TTie  Innkeeper's  Lien. 

PART  II. 
THE  COMMON  CARRIER  OF  GOODS. 


Section  83. 
SL 
85. 
8(5. 

87. 

vi 


CHAPTER    IX. 
INTRODUCTORY. 

V,  no  are  Common  Caniers. 

The  Different  Classes  of  Common  Carriers. 

Who  are  not  Common  Carriers. 

Carriers  of  Live  Animals. 

Divisions  of  the  Subjeets. 


TABLE   OF   CONTKNTS. 


CHAPTER     X. 

THE  DUTY  TO  RECEIVE. 

Skciion  8S.  Common   Carrier   Subjoct   to   legislative  Control  and 
Hc^ulatlou. 

SSI  Must  Cjirry  for  all  Persons, 

!Mi.  Must  Carry  for  Ueasouiible  Compensation. 

!)l.  Must  Carry  lor  all  under  same  Conditions. 

i)2.  Discrimination  in  Charges. 

!«.  K.xeeptions  to  Uule  lliat  Common  Carrier  must  CaiTy 

for  all. 

94.  Where  Tayment  of  Ciiarpos  Refused. 

J).").  Wliere  Serviee  Demanded  Outside  his  Profe.ssiou. 

iMi.  Where  Goods  llleonditioned  or  Suspicious. 

!)7.  Wiiere  he  has  Insutlicient  Room. 

08.  Carriaj;e   nnist   be   for   Hire. 

(M).  Carriajre  beyond  Carrier's  Itoute. 

100.  Carrier's  Tower  to  Carry  Beyond  his  Uouto. 

101.  Not  Round  to  do  so. 

102.  l':ffect  of  A;:reoinent  Not  to  Carry  Reyond  Route. 
lO;?.  Proof  of  A^M-eement  to  Carry  Beyond  Route. 
101.  Actual  Delivery  to  Conueetins  Carrier  Required. 
lO.'t.  Aliter  as  Between  the  Carriers  Tliemselvcs. 

100.     Receipt  of  Goods  marked  to  Place  Beyond  Route.— The 
Eujilish  Rule. 

107.  The  American  Rule. 

108.  Ri^rht  of  Connt'ctin^  «'arrier  to  Exemptions   in   Fir.st 

Contract, 
ion.     Power  of  First  Carrier  1o  Contract  with  Connecting 
Carrii-r. 

110.  Other  Pvijihts  and  Liabilities  of  Connecting  Carriers. 

111.  Presumption  as  to  Time  of  Damage. 

CHAPTER    XI. 
THE  RESPONSIRILITY  DURING  TRANSIT. 


Section  112.  Carrier's  Responsibility  Begins  on  Delivery. 

11.3.  Actual  or  Constructive  Acceptance  Necessary. 

114.  At  What  Place  Must  Delivery  be  Made. 

115.  To  Wliom  Must  Delivery  be  Made. 

IIG.  Delivery  According  to  I'sage  and  Custom. 

117.  Common  Carrier  a  Bailee  for  Hire. 

vii 


TAHLK   OF   OONTKNTS. 


Skction  lis. 
111). 
120. 
121. 
122. 
123. 
124. 
125. 
120. 
127. 
128. 

129. 
130. 
131. 
132. 
133. 
134. 
135. 


Common  Carrier  Llkewls.>  an  Insurer. 

Exocpticm  to  his  Liability  as  In.uavi. 

The  "Act  oi:  Go<l." 

Discordant   r)(>cisions. 

Cases  not  ^Vitllin  the  "Act  of  (iod." 

The  Question  of  Xe«liKence  Immaterial. 

"Act  of  Cod"  MiLst  be  Mxclusivt    Cause. 

Nct;li«ence  and  -Act  t)r  liod"  ConcuiTiug. 

L.KSs  bv  "Act  of  (Jod"  after  Di'lay. 

I^ss  by  "Act  of  God"  after  Deviation. 

Duty  of  Carrier  to  Treserve  Goods  DaniaKed  by  "Act 

of  God." 
The  rublic  Enemy. 

Ixjsses  Caused  by  Inherent  Defects  In  Goods  Carried. 
Losses  Caused  l)y  Seizure  under  Process. 
Losses  Caused  by  Act  or  Omission  of  Owner. 
Losses  Caused  throufih  Fraud  of  Owner. 
Losses  Caused  by  Neglect  of  (^wnt'r. 
Owner  Undertakiuf?  Part  of  Carrier's  Dulles. 


CHAPTER    XII. 

MODIFICATION  OF  LIABILITY  BY  AGUEEMENT. 


Section  13G.    Power  of  Common  Carrier  to  Limit  his  Liability.— In 
Enplaud. 

137.  In  the  United  States. 

138.  Reasons  for  the  American  Rule. 

130.    Anonuilous  Doctrines  In  New  York,  Illinois  and  Penn- 
sylvania. 

140.  Notices  Limitint;  th'S  Carrier's  Liability. 

141.  Distinctions  Between  Notices  Limiting  Liability  and 

Notices  of  Rea.sonable  Regulations, 

142.  Notjces  as  to  Value  and  Character  of  Goods. 

143.  Methods  of  Glvinj?  Notice.— Advertisements  and  Pla- 

cards. 

144.  Notices  in  Receipts  or  other  Vouchers. 

145.  Notice  Assented  to  Constitutes  a  Contract. 
14(5.    Assent  not  Inferred  from  Mere  Knowledge. 

147.  Accepting  Papers  Containing  Limitations  or  Condi- 

tions. 

148.  Bills  of  Lading. 

149.  Express  Receipts. 

viii 


tahlp:  <»i<"  contents 


IKCTION  in«.      IJUKUilUt'   <'1i<'»Um. 

151.  Uf(iuisitrs  to  Validity  (if  suth  Notices. 

152.  TliiTO   Musi  bt'.uo  Mlstuko. 

153.  Nor  Dtinss. 

154.  Nor  Frutiil. 

155.  Nor  Wi\lv(>r. 

15(i.  Nor  Aiiti'fcdi'iU  Tarol  C<int'"ift. 

157.  Must  have  a  (.'oiisidcratlou. 

158.  Time  and  Manu.'r  of  MakluK  t  laiin. 
150.  OthiT  ("oudrtions. 

KiO.     Bills  of  LadluK  as  lU-r  li^s  an.l  Contra' Is. 

101.  Effcrt  of  the  Spcchil  Coiilviict. 

102.  Contracts  Constiucd  Strictly   ..  .  liust  Carrier. 

CondUionit  and  Exceptions  Peculiar  to  Carriage  hij  Water. 

loa.  Call  at  Ports. 

I(i4.  Daniafjc. 

105.  Dangers  of  tlio  Roads. 

100.  Dan^'ors  of  the  Soas  and  rcrlls  of  Navigation. 

107.  Dcllc'icnfy  In  Quantity. 

108.  K.xtraordinary  Marino  Uisk. 

109.  Firi". 

170.  CJood  Order  and  Condition. 

171.  luvoiro  Vahu'. 

172.  Li'akaKo  and  Breakage. 

173.  On  lijiki's  and  llivprs. 

174.  Pilot,  Master  or  Mariners. 

175.  Port  of  Dlsoliarj;e. 

170.  Prlvlle^re  of   Ite-shipping. 

177.  (.iuantlty  Chiaranteed. 

178.  Ueady  to  Dlscharse. 
170.  Uestralnts  of  I'rlnces. 

180.  Uobbers  and  Thieves. 

181.  Tow  and  Assist  Vessels. 

182.  Value  and  Contents  Unknown. 

Conditions  and  Exceptions  Peculiar  to  Carriage  by  Land. 

183.  All  Kail. 

184.  Article. 

185.  C.  O.  D. 
1S(>.  Depot. 

187.  Feed,  Water  and  take  Proper  Care. 

188.  Fire. 

ISO.     Ilou-sehold  (Joods. 
190.    Load  and  I'uload. 

ix 


TABLK   OF   CONTENTS. 

Section  101.  Loss. 

102.  On  tbo  Train. 

193.  rackage  or  Thins. 

194.  ro.ishable  Property. 
l!)r>.  Place  of  Destination. 

190.  Tlirouph  Witliout  Transfer. 

197.  Ti'ansit. 

198.  Unavoidable  or  Inevitable  Aeeident. 

199.  Value  or  Cost. 

CHAPTER   XIII. 

THE  DUTY  TO  KE-DELIVEU. 

Section  200.  lutrotluetory. 

201.  Delivery  at  Proper  IMaue. 

202.  Delivery  in  Reasonable  Manner. 

203.  Delivery  at  Proper  Time. 

204.  Delivery  Within  Reasonable  Time. 

20r..    Delivery    under    Special    Contract  —  Instructions    of 

Shipper. 
20C>.    Delivery  to  Wronjr  Person. 

207.  Duty  of  Carrier  to  Notify  Consignor. 

208.  Right  to  Examine  Goods. 

200.  Claims  of  Ownership  by  Tliird  Parties. 

210.  Stoppage  in  Transitu. 

211.  Who  may  Sue  for  I^)ss  or  In.iury  to  (ioods. 

212.  Actions  for  In.)ury  to  or  Interference  with  Goods. 

213.  Actions  for  Freight  Charges. 

214.  Power  to  Sell. 

21.5.    Tlie  Carrier's  Lien. 


PART    III. 
THE  COMMON  CARRIER  OF  PASSENGERS. 

CHAPTER  XIV. 
THE  RELATION  OF  CARRIER  AND  PASSENGER. 

Section  217.  AVho  are  Common  Carriers  of  I'assmgers. 

218.  Must  Carry  for  all. — Exceptions. 

219.  Where  Payment  of  Fare  Refused. 

220.  Where  Service  Demanded  Outside  his  Holdiug  out. 

X 


TABLE   OF   CONTENTS. 


Section  221.  Where  He  has  InsufBelent  Room. 

222.  Whei-e  Person  has  Conflicting  Interests. 

223.  Where  Person  Dangerous  or  C)ff<'nsive. 

224.  AVaiver  by  Uoceiviug. 
22.'>.  Who  are  Passengers. 

220.  Servants  of  Carrier  as  Passengers. 

227.  At  what  Time  Uelation  Begins. 

228.  During  what  Tiine  Relation  Continues. 

229.  At  what  Time  Relation  Ends. 

230.  Persons  not  Passengers  to  whom  Carrier  Owes  Du^y. 

CHAPTER    XV. 
THE  DUTY  AS  TO  MEANS  OF  TRANSPORTATION. 


Sectiom  2,'?1. 
232. 

2.33. 
234. 
235. 
230. 


Carrier  of  Passengers  not  an  Insurer. 

Duty  as  to  Veliielus  ami  Appliances  for  Transporta- 
tion. 

Duty  as  to  Roadway. 

Duty  as  to  Receiving  and  Landing  Places. 

Duty  to  Adopt  new  Inventions  for  Safi!ty. 

Responsibility  foi:  Negligence  of  Manufacturer  or  Con- 
tractor. 


CHAPTER    XVI, 


Section  237. 
23S. 
230. 
240. 
241. 
242. 
243. 


THE  CONTRACT  OF  CARRIAGE. 

Time  Tables  as  General  Offers. 

Offer  Tiu-ned  into  Contract  by  Purchase  of  Ticket. 

Liability  for  not  Running  according  to  Time  Table. 

Tickets  as  Contracts. 

Ticlvet  good  for  Continuous  Trip. 

Limitations  as  to  Time. 

Assignability  of  Ticket. 

244.  Ticket  Conclusive  of  Passenger's  Rights. 

245.  Limiting  Liability  for  Negligence — as  to  Paying  Pas- 

sengers. 
240.    Duty  towards  Free  and  Paying  Passenger  the  same. 

247.  Who  ar(>  Free  Passengers. 

248.  Limiting  Liability  for  Negligence — as  to  Free  Passeu- 

gi-rs. 

249.  Arguments  in  SupiM)rt  of  the  Different  Views. 

250.  SpcHiial  Contracts  with  Passengers. 

xi 


TABLE  OF  CONTENTS. 

CHAPTER   XVII. 

THE  DUTIES  AND  LIABILITIES  DURING  TKANSIT. 

Section  '2'>l.  Must  Furnish  Scat. 

1252.  And  Moans  of  Kofreshment. 

253.  Must  carry  ra.ssonjior  to  Dostiuation. 

254.  Must  enable  him  to  Land  Safoly. 

255.  Powers  of  Carrier  to  Establisli  Kesulations. 

256.  rasseuser  may  be  Ejected  for  Violation  of  Regula- 

tions. 

257.  Mode  and  Place  of  Ejection. 

258.  PassenKor's  Ripht  to  Resist  Ejection. 
250.    No  Kij,'ht  to  Imprison. 

2G0.  Non-paynient  of  Fare. 

201.  Requirinj;  Previous  Purchase  of  Ticket. 

2G2.  Showing  and  Surrendering  Ticket. 

20.3.  Other  Regulations  as  to  Tickets. 

201.  Concerning  use  of  Carrier's  Premises. 

205.  Classitication  oC  Passengers. 

2()0.  Passengers  on  Freight  Trains. 

207.  Dangerous  and  Disorderly  Pa.ssengcrs. 

208.  Notice   of  Regulations. 

269.    Persons  under  Physical  or  Mental  Disability. 

CHAPTER    XVIII. 
THE  PASSENGER'S  BAGGAGE. 


Section  270.  Right  of  Passenger  to  Baggage. 

271.  Carrier  of  Baggage  an  Insurer. 

272.  What  is  Baggage. 

273.  Rule  in  last  Section  Modified  by  T:'sage. 

274.  Carrier  may  Refuse  to  Carry— wlieu. 

275.  Effect  of  Failure  to  State  Kind. 
270.  Effect  of  Failure  to  State  Value. 

277.  May  Enquire  as'  to  Contents  of  Trunk. 

278.  Knowledge  of  Carrier  that  Articles  are  not  Baggage. 

279.  Owner  of  Baggage  must  be  Passenger. 

280.  Need  not  Accompany  Baggage. 

281.  When  Liabilrty  of  Carrier  Begins. 
xii 


TABLE   OF   CONTENTS. 

Section  282.  Before  Purchase  of  Ticket. 

283.  Bajigase  left  without  Notice — Custom. 

284.  The  Bagsasenian  aud  his  Powers. 

285.  The  BanKase  Checlc. 

286.  When  Liability  of  Carriers  Ends. 

287.  Liability  of  Carrier  as  Warehouseman. 

288.  As  to  ConuectinK  Cai'riers. 

289.  Where  Bajigafie  in  Custody  of  Passenger. 


CHAPTER    XIX. 


THE  RESPONSIBILITY  FOR  ACTS  OF  OTHERS. 


Section  290. 
20L 
292. 
29a. 

294. 

295. 
296. 

297. 
298. 

299. 
300. 
301. 
302. 


Passenger  Carrier  not  Bound  to  Carry  Beyond  Route. 

Liability  Where  He   Maki-s  Through   Contract. 

Evidence  of  Through  Contract. 

Where  Means  of  Tran.sportatiou  Belong  to  Third  Par- 
ties. 

Where  Third  Parties  Use  Carrier's  Means  of  Trans- 
portation. 

Where  Line  in  Hands  of  Ti'ustees. 

Where  Line  in  Hands  of  Lessees,  Purchasers  or 
Others. 

Liability  of  Master  for  Acts  of  Servants. 

Application  of  Foregoing  Rules  as  Between  Carrier 
and  Passenger. 

Rule  of  Absolute  Liability  and  Reasons  Therefor. 

Relation  of  INIaster  and  Servant  Must  Exist. 

Liability  for  Acts  of  Independent  Contractors. 

Liability  for  Acts  of  Fellow  Passengers  and  Strangers. 


CHAPTER    XX, 


THE  ACTS  OF  THE  PASSENGER. 


Section  303.    Carrier  not  Liable  when  Passenger  Injures  Himself. 
i\(yi.    When  both  Carrier  and  Passenger  are  Negligent. 

305.  Negligence  a  Question  of  Fact.— Province  of  Judge 

and  .Tury. 

306.  Contributory  Negligence.— Riding  in  Dirngerous  I'lace. 

307.  Contributory  Negligence.— Riding  in  Dangerous  Man- 

ner. 

xiii 


TABLE  OF  CONTENTS. 


Section  308. 

309. 
310. 
311. 
312. 

313. 
314. 

315. 


Contributory  Negligence— Boarding  or  Leaving  Velii- 

cle. 

Contributoiy  Negligence.— Otlier  Cases. 

Contributory  Negligence.— I^ss  of  Baggage. 

Contributory  Negligence.- Passengtn'  in  Sleeping  Car. 

Contributory  Negligence.— Acts  of  Passenger  Result- 
ing from  Directions  of  Carrier's  Servants. 

Contriliutory  Xogligence  of  Third  Persons. 

Contributory  Negligence  of  Person  in  Charge  of  Chil- 
dren. 

Contributery  Negligence  of  Can-ier  of  Passenger. 


PART    IV. 

OTHER  EXCEPTIONAL  BAILMENTS. 

CHAPTER    XXI. 

THE  TELEGRAPH,  TELEPHONE  AND  OTHER 
MODERN  AGENCIES. 


SlCTlON  310. 
317. 
318. 
319. 
320. 
321. 
322. 

:J2:j. 

324. 
325. 
32G. 

327. 
328. 
329. 
330. 

xiv 


Duties  and  Obligations  of  Telegraph  Companies. 
Telegraph  Company  not  an  Insurer. 
Action  may  be  Brought  by  Addressee. 
Limitation  of  Liability  by  Contract. 
Conditions  Contained  in  Telegraph  Blauks. 
Conuecilng  Lines. 

Contrilnitory  Negligence  of  Sender. 
Telephone  Companies. 

Sleeping  Car  Companies— not  Common  Can'iers. 
Not  Liable  as  Innkeepers. 
Contrary  View— Sleeping  Car  Company  Liable  as  an 

Innkeeper. 
This  View  Sustained  in  Nebraska. 
The  Liability  of  the  Sleeping  Car  Company. 
Passenger  Elevators. 
Postmasters  and  Mail  Carriers. 


TABLE   OF   CONTENTS. 


DIVISION    III. 


QUESTIONS  OF  PROOF  AND  DAMAGE. 


CHAPTER    XXII 


EVIDENCE. 


Skction  331. 
332. 
333. 
331. 
335. 
33G. 
337. 
338. 
339. 
340. 

341. 
342. 
34.3. 


Introductory. 

Burden  of  Troof.— Ordinary  Bailments. 

Burden  of  Proof. — Innkeepers. 

Burden  of  Proof — Common  Carriers  of  Goods. 

Proof  of  the  Contract. 

Quantum  of  Proof  Required. 

Proof  that  Loss  within  Excepted  Causes. 

Burden  of  Proof  as  to  XiM,'li;,'enco. 

Burden  of  Proof  under  Special  Circumstances. 

Common  Cari'iers  of  Passengers.— Burden  of  Proof  of 

Negllfience. 
Burden  of  Proof  of  Contributory  Negligence. 
Burden  of  Proof.— Telegraph  Companies. 
Burden  of  Proof.— Sleeping  Car  Companies. 


CHAPTER    XXIII, 


DAMAGES. 


Sr,i' 


I  ION  344. 
315. 
346. 

347. 
348. 
349. 
350. 
351. 
3.''.2. 


Measure  of  Damages.— Ordinary  Bailments. 
Measure  of  Damages.— Common  Carriei  of  Goods. 
Measure    of    Damages.— Common    Carrier    of    Passen- 
gers.—For  Breach  of  Contract. 
Measure  of  Damages.— In  Actions  of  Tort. 
ICxeniplary  or  Punitive  Damages. 
:Measure  of  Damages.— Telegraph  Companies. 
Damages  for  Mental  Suffering. 
The  Texas  Doctrine  Denied  in  some  States. 
Arguments  for  and  against  the  Texas  Doctrine. 

XV 


:.t? 


THE 


PRINCIPLES 


OF   THE 


American  Law  of  Bailments. 


CHAPTER   I. 


PRELIMINARY. 

Section  1.  The  History  of  Bailment  Law. 

2.  The  English  Writers. 

3.  The  American  Writers. 

4.  Plan  and  Arrangement  of  this  Work. 


'i ' 


§  1.  The  History  of  Bailment  Law. — The  history 
of  Bailment  law  in  England  may  be  said  to  begin  with 
the  case  of  Coggs  v.  Bernard,^  decided  by  the  English 
Court  of  Queen's  Bench  in  the  second  year  of  Queen 
Anine  (1703).  Although  the  subject  was  slightly 
touched  upon  now  and  then  in  some  of  the  older  re- 
ports, the  word  itself  as  a  title  of  the  law  is  rarely 
found  in  use  earlier  than  the  beginning  of  the  eigh- 
teenth century.  The  question  raised  in  Coggs  v.  Ber- 
nard, was  as  to  the  liability  of  one  who  had  agreed 
to  carry  goods  safely,  but  who  was  not  a  common  car- 
rier, and  was  not  to  be  paid  for  his  work,  and  the  only 
question  decided  was  that  such  a  bailee  was  liable  for 
any  damage  done  to  them  through  his  neglect.  But 
Chief  Justice  Holt,  in  his  judgment  expounded  for  the 

1 2  Ld.  Ray,  909 ;  1  Smith  Lead.  Cas.  284. 


PRELIMINARY  CHAPTER. 


first  time  the  English  law  of  Bailments,  and  finding 
the  common  law  precedents  few  and  unsatisfactory, 
went  to  the  civil  law  far  argument  and  illustration,  and 
from  Bracton  and  other  continental  jurists  drew  ma- 
terial for  a  classification  of  Bailment  law,  which, 
though  aftenvards  slightly  altered  by  Sir  William 
Jones,*  has  remained  the  classification  familiar  to  every 
succeeding   generation   of  lawyers    unto    this    day. 

"  There  are,"  said  Chief  Justice  Holt,  "  six  sorts  of  Bailment.  The 
first  sort  of  Bailment  is  a  bare  naked  l)ailment  of  goods,  delivered  by  one 
man  to  another  to  keep  for  the  use  of  tlie  bailor,  and  this  I  shall  call 
Depositum.  The  second  sort  is  when  goods  or  chattels  that  are  useful  are 
lent  to  a  friend  gratis,  to  be  used  by  him,  and  this  is  called Commodatum, 
because  the  thing  is  to  be  restored  in  specie.  The  third  sort  is  when 
goods  are  left  with  the  bailee  to  be  used  by  him  for  hire;  this  is  called 
Locatio  et  Conductio,  and  the  lender  is  called  locator  and  the  borrower 
conductor.  The  fourth  sort  is  when  goods  or  chattels  are  delivered  to 
another  as  a  pawn  to  be  a  security  to  him  for  money  borrowed  of  him  by 
the  bailor,  a-.a  this  is  called  in  Latin,  Vadium,  and  in  English,  a  pawn  or 
pledge.  The  fifth  sort  is  when  goods  or  chattels  are  delivered  to  be  car- 
ried, or  something  is  to  be  done  about  them  for  a  reward  to  be  paid  by 
the  person  who  delivers  tliem  to  the  bailee  who  is  to  do  the  thing  about 
them.  The  sixth  sort  is  when  there  is  a  delivery  of  goods  or  chattels  to 
somebody  who  is  to  carry  them,  or  do  something  about  them  gratis, 
without  any  reward  for  such  his  work,  or  carriage,  which  is  this  case." 

Bat  that  the  Chief  Justice  was  not  entirely  satisfied 
with  his  classification  appears  from  his  concluding 
words,  "I  have  said  thisi  much  in  this  case  because 
it  is  of  great  consequence  that  the  law  should  be 
settled  in  this  point;  but  I  do  not  know  whether  I  may 
have  settled  it  or  may  not  rather  have  unsettled  it. 
But  however  that  happens,  I  have  stirred  these  points 
which  wiser  heads  in  time  may  settle."  For  three 
quarters  of  a  century  the  law  of  Bailments  received 
little  of  either  exposition  or  development  in  the  English 
courts.  At  the  end  of  this  time  a  great  classical  and 
oriental  scholar,  a  renowned  traveler  as  well  as  a  most 
accomplished  linguist  and  learned  jurist,  revived  the 

1  Post,  §  6.  «  J 

2 


PEELIMINARY   CHAPTER 


interest  of  the  Englisih  bench  and  bar.  Sir  Will'am 
Jones  published  his  Essay  on  Bailments,  which,  thonj^.i 
largely  the  result  of  the  experience  and  learning  of  the 
continental  jurists  which  he  had  so  closely  studied,  be- 
came at  once  recognized  as  authority  at  Westminster 
Hall,  for  the  reason  that  it  was  to  so  great  an  extent 
founded  on  analogous  principles  of  the  common  law  or 
fairly  deducible  from  those  principles.* 

During  the  next  half  century,  or  more,  the  occasional 
case  to  be  found  in  the  English  Reports  is  an  action 
against  a  person  doing  w'ork  upon  chattels,  an  inn- 
keeper, or  the  public  wagoner,  who  then  did  the 
land  transportation  of  the  country.  But  with  the 
end  of  the  first  half  of  the  present  century,  the  judicial 
reports  of  both  England  and  the  United  States  begin  to 
be  sw^elled  through  a  new  cause  viz.,  the  introduction  of 
transportation  of  both  persons  and  property  by  steam. 
Later,  the  business  methods  of  the  country  discover 
another  frequent  kind  of  bailment  viz.,  the  delivery  of 
incorporeal  personalty  as  collateral  security;  and  in 
our  own  day  modern  invention  in  the  telegraph,  the 
telephone,  the  sleeping  car  and  the  passenger  elevator, 
calls  for  the  application  of  the  principles  of  the  law  of 
bailments  to  these  new  conditions  of  our  civilization 
and  national  growth.  . 

The  result  is  that  the  title  Bailment  in  all  its  subdivi- 
sions, has  now  expanded  to  one  of  the  most  extensive 
and  important  in  our  law  reports  and  digests;  and  he  is 
a  diligent  searcher  after  precedents  who  can  at  this  day 
keep  pace  with  the  decisions  of  the  courts  on  this  title 
alone.  Moreover,  any  law  book  on  the  subject  becomes 
old  in  less  than  ten  years. 

§  2.  The  English  Writers.— The  Essay  on  Bail- 
ments of  Sir  William  Jones,  was  published  in  1781,  a 

1  2  Am.  L.  Itev.  77. 

3 


':  1 


PRELIMINARY   CHAPTER. 


second  edition  in  1798,  and  a  third  and  fourth  in  1823 
and  1833.  It  has  been  reprinted  three  times  in  this 
country  in  1813,  1828,  and  1836.  Thou^'h  still  fre- 
quently cited  by  text  writers,  it  is  now  rarely  men- 
tioned as  authority  in  the  reported  cases;  and  it  is 
curious  to  observe  that  it  has  apparently  not  been 
regarded  as  of  sufficient  merit  to  reprint  either  in 
England  or  America  since  the  title  Railroads  appeared 
in  the  reports  and  digests;  nor  is  mention  of  it  to  be 
found  in  any  of  the  catalogues  of  law  publishers  and 
book-sellers  for  many  years  back.  It  is  also  somewhat 
strange  that  although  English  writers  in  other  sub- 
divisions of  Bailment  law,  and  analogous  subjects,  such 
as  Contracts,  Carriers,  Negligence  and  Railroads,  have 
incidentally  touched  upon  the  general  principles  of 
Bailment  law.  Sir  William  Jones'  essay  is  still  the  only 
English  law  book  upon  that  distinctive  title. 

§  3.  The  American  Writers.— As  in  all  other 
fields  of  the  law  the  American  writers  have  been  more 
active  than  those  of  England,  so  it  is  in  the  law  of  Bail- 
ments, which  in  this  country  has  been  presented  in  no 
less  than  three  treatises.  First  in  point  of  time  is  the 
work  of  Mr.  Justice  Story,  which,  published  in  1832,  has 
gone  through  half  a  score  of  editions.  The  work  of  Mr. 
Edwards  was  published  in  1858,  and  has  gone  through 
three  editions,  while  the  latest  work,  that  of  Mr. 
Schouler,  was  published  in  1880  and  again  in  1887. 

All  of  Judge  Story's  writings  in  the  field  of  jurisprud- 
ence are  abundantly  interspersed  wi:h  extracts  from 
the  Latin  authors,  but  no  other  certainly  to  the  extent 
of  his  work  on  Bailments.  That  civil  law  where  Lord 
Holt  found  so  great  an  amount  of  material  for  his  elab- 
orate judicial  opinion.  Judge  Story  again  exploited 
for  his  treatise,  and,  urged  to  make  an  exhaustive  study 
of  that  law  by  the  founder  of  the  Professorship  of  law 


PIIELIMINAKY   CHAPTER. 


at  Harvard  which  he  at  that  timo  leld,  it  is  not  strange 
that  the  result  of  his  labors  should  bo  a  treatise  half 
English  and  half  Latin,  and  shrnld  give  occasion  to  the 
criticism  of  Judge  Kedfield :  *^A  iaw  bo.ok  is  not  only  no 
more,useful,  for  being  largely  made  up  of  extracts  from 
learned  authors  in  the  Latin  or  French,  Spanish  or 
Portuguese,  although  it  may  appear  far  m'ore  learned, 
but  it  is  in  fact  far  less  useful  to  those  who  have  no 
time  to  devote  to  such  mere  scholarly  conuncuts  or 
scholastic  relinements."*  For  this  reason  the  treatise 
of  Judge  Story  is  ill-adapted  to  the  student  or  practi- 
tioner of  the  present  da}'. 

The  author  of  the  present  work  on  the  Principles  of 
the  American  Law  of  Bailments,  believes  that  anti- 
quarian research  in  and  disquisition  upon  the  laws  of 
Kome  are  hardly  essential  to  a  book  whose  object  is  to 
show  the  law  of  America  as  taken  from  the  common 
law  of  England,  modified  by  the  necessities  of  a  differ- 
ent political  system,  and  by  the  legislation  of  the  differ- 
ent states,  and  extended  by  the  introduction  of  modern 
inventions  which  call  for  the  application  of  old  prin- 
ciples to  new  conditions. 

§  4.    Plan  and  Arrangement  of  this  Work. — The 

work  is  arranged  in  three  divisions,  containing  in  all 
twenty-three  chapters.  Commencing  with  an  ex])lana- 
tion  of  the  word  Bailment  and  a  statement  of  the  re- 
quisites to  the  creation  of  the  bailment  contract,  it  re- 
jects the  old  classification  of  bailments  of  Chief  Justice 
Holt  and  Sir  William  Jones  and  makes  of  them  two 
classes  only — the  Ordinary  and  the  Exceptional 
bailment.     (Cap.  IL) 

In  the  first  division  are  considered  the  general 
principles  applicable  to  all  ordinary  bailments,  how 

lltedf.  CaiT.,Pt.  VI,  §616. 

5 


PRELIMINAUY   CHAPTER. 

they  aro  croatod  and  what  do<jr('i'  of  caro  is  reqiiiml  of 
the  bailee,  what  are  his  i'i<;lilH  iu  the  bailed  cliatlel,  aud 
what  are  the  duties  eonueeted  with  his  trust;  what  are 
his  rights  as  to  tompeusation  and  reimbursement, 
aud  in  what  manner  the  bailment  contract  may  come 
to  an  end.     (Cap.  III.) 

Next  in  order  are  discussed  those  bailments  where 
the  whole  benefit  is  on  the  bailor's  side  (Cap.  IV.)  and 
those  in  which  it  is  all  on  the  bailee's  side  (Cap.  V.) 

The  mutual  benetit  bailment  next  claims  our  attenr 
tion  i.e.,  where  the  bailment  is  beneficial  to  both  bailor 
aud  bailee,  and  we  find  that  such  bailments  arise  iu  five 
cases,  viz.:  (a)  in  the  case  of  the  hiring  of  the  use  of 
a  chattel;  (b)  in  the  case  of  the  hiring  of  the  labor  or 
services  on  or  about  a  chattel  of  a  workman,  manufac- 
turer, laborer  or  artizan;  (c)  in  the  case  of  the  hiring  of 
the  care  or  custody  of  a  chattel;  (d)  in  the  ca'se  of  the 
hiring  of  a  person  to  transport  a  chattel  from  one  place 
to  another  (Cap  YL);  and  (e)  in.  the  case  of  the  delivery 
of  a  chattel  to  another  to  hold  as  security,  called  a 
pawn  or  pledge.  (Cap.  VI 1.) 


Part  I — InnhrpevK. — The  first  of  the  exceptional 
bailees  is  the  innkeeper,  and  in  Chapter  VIII,  we  find 
who  are  innkeepers,  and  to  what  extent  they  are  bound 
to  receive  all  persons  who  apply,  what  their  liability 
is  at  common  law  for  the  baggage  of  their  guests,  and 
how  that  liability  has  been  modified  by  statute;  at  what 
time  their  responsibility  begins  and  ends;  to  what  ex- 
tent the  guest's  own  neglect  may  bar  his  remedy,  and 
the  right  of  the  innkeeper  to  hold  the  guest's  baggage 
for  his  charges. 

Part   II.— Common  Carriers   of   Goods.— In    chapter 
IX  we  learn  who  are  and  who  are  not  common  carriers 
6 


ii< 


PRELIMINARY   CHAPTER. 


of  goods;  in  Olisiptor  X  that  coinnion  carriors  aro  pub- 
lic agencies  who  are  subject  to  public  control,  and  must 
carry  for  all  without  discrimination;  that  they  are  not 
bound  to  agree  to  carry  beyond  the  limits  of  their  own 
lines,  yet  they  may  d(»  so.  In  Chapter  XI,  fheir  re- 
sj)onslbility  during  the  transit  is  considered,  and  the 
rigorous  liability  Avhlch  tlic  common  law  i)uts  upon 
them.  In  (Miapter  XII,  the  much  debated  question  as 
to  the  power  of  the  common  carrier  to  evade  his  iuKur- 
ance  liability  by  either  a  contract  with  or  a  notice  to 
his  customers,  is  cxamlne<l  with  great  care  and  ex- 
haustive research;  and  thi'  construction  to  be  given  to 
conditions  in  bills  of  lading,  express  receipts,  and 
otlier  writ-ten  voiicliers  is  stated.  In  Chapter  XIII,  we 
tind  that  the  carrier  must  deliver  at  a  proper  place  and 
time  and  in  a  iii'ojx'r  manner;  that  he  must  deliver  to 
the  right  jx'i'son;  that  as  to  all  others  but  the  real 
owner,  inlei'fcring  with  his  goods,  he  has  a  right  of 
action  to  re<'ovcr  them ;  and  that  his  right  to  his  charges 
for  the  carriage  nuiy  be  enforced  by  action,  sale  or  lien. 
Part  III — Coiinnon  Carriers  of  PansoKjrrs. — In  Chap- 
ter XIV,  are  discussed  the  relation  of  carrier  and 
]>assenger;  the  duty  of  the  carrier  to  receive  every  one 
who  demands  carriage,  and  the  time  when  the  relation 
commences  and  ends.  The  carrier's  duty  in  regard  to 
his  means  of  transportation,  his  vehicles,  roads,  bridges 
or  stations,  is  considered  in  Chapter  XV,  while  in 
<%apter  XVI,  the  contract  between  carrier  and  pas- 
senger whether  through  his  public  advertisement  or  the 
tickets  which  he  sells;  the  right  of  the  carrier  to  limit 
his  liabilities,  and  his  responsibility  towards  passen- 
gers riding  free,  are  discussed  at  length.  In  Chapter 
XVII  we  find  that  a  carrier  must  furnish  his  passen- 
gers with  reasonable  accommodations,  such  as  a  seat, 
opportunity  for  obtaining  refreshment,  and  for  enter- 


PRELIMINARY  CHAPTER. 

ing  and  leaving  his  vehicle  safely,  and  that  on  the  other 
hand  he  has  a  right  to  establish  reasonable  regulations 
by  which  the  passenger's  conduct  while  being  carried 
must  be  governed.  In  Chapter  XVIII  the  responsibil- 
ity of  the  carrier  for  the  passenger's  baggage  is  consid- 
ered, and  a  comprehensive  definition  of  the  word  bag- 
gage is  presented.  Chapter  XIX  treats  of  the  responsi- 
bility of  the  carrier  for  the  acts  of  persons  to  whom  he 
commits  a  part  of  his  duties,  as  well  as  his  liability  for 
the  acts  of  his  servants,  of  contractors  eugagKl  in  doing 
any  kind  of  work  for  him,  and  of  fellow  passengers, 
which  result  in  injury  to  the  passenger.  In  Chapter 
XX  the  effect  of  the  passenger's  own  neglect  in  not 
taking  care  to  avoid  i  ijury  is  considered. 

Part  IV. — In  Chapter  XXI  those  modern  agencies, 
the  telegraph  and  telephone,  the  sleeping  car  and 
the  passenger  elevator,  are  treated,  and  in  the  light 
of  recent  decisions  in  the  coui'ts,  the  principles  to 
be  applied  in  arriving  at  their  liabilities  are  stated. 


In  the  third  division  the  rules  of  evidence  applicable 
in  actions  against  bailees  (Cap.  XXII)  and  the  amount 
of  damages  to  be  given  in  cases  of  actionable  injuries 
(Cap.  XXIII)  are  discussed  and  the  conclusions  of  the 
courts  concisely  set  forth. 

Finally,  in  no  part  of  the  work  has  the  author  been 
content  with  a  mere  recital  of  what  the  law  is, 
but  he  has  endeavored  to  give  the  reasons  fur  the  rules 
and  principles  established  by  the  courts,  and  when  in 
different  states,  different  and  conflicting  views  are  en- 
countered, he  has  tried  to  state  fairly  the  arguments  on 
the  two  sides  of  the  controversy,  and  to  pass  judgment 
on  their  weight. 

8 


Section  6. 


CHAPTER  II. 

THE   TWO   GREAT   DIVISIONS. 

What  a  Bailment  is. 

Tlie  Classes  of  Bailments. 


§  5.  What  a  Bailment  Is. — The  etymology  of  the 
word  Bailment'  suggests  at  once  its  foreign  extraction. 
Shortly,  it  may  be  said  to  be  the  holding  possession  of 
another's  personal  property  in  trust  for  some  specific 
purpose;  though  raany  conflicting  definitions  are  to  be 
found  in  Ihe  text  books.^  When  A  delivers  a  chattel 
to  B  to  use  in  any  particular  way  and  when  B  receives 
the  article  with  the  understanding  that  it  is  to  be  used 
in  a  particular  way  and  that  when  it  has  been  so  used 
it  is  to  be  returned  to  A,  a  certain  contract  relation 
exists  between  the  parties,  and  tliis  relation  is  calle<l  a 
bailment.  And  it  does  not  matter  whether  the  delivery 
was  nmde  with  a  view  to  the  simple  custody  of  the  ar- 
ticle for  a  certain  time,  or  with  a  view  to  its  being 


^  liailler  (fr.)  to  deliver. 

2  Neither  Lord  Holt  nor  his  nssocirites 
defined  the  word  in  their  Judgments,  in 
CogKS  1'.  IJernard.  .'>ir  Willi.inj  Jones 
defined  linilnient  as  "a  delivery  of  goods 
intrusion  ii  contract,  expressed  or  im- 
plied that  tlic  trust  shall  he  duly  exe- 
cuted and  tl.e  goods  redelivered  as  soon 
as  the  time  or  use  for  which  they  were 
hailed  shall  have  elapsed  or  be  per- 
formed." .Jones  Bail.,  117.  "Bailment," 
says  Blackstone,  "is  a  delivery  of  goods 
Intrust  njion  a  contract  express  or  im- 
plied that  thejtrust  shall  be  faithfully  ex- 
ecuted on  the  partot  the  bailee,"  2  lilnck. 
Com.  4WJ:,  and  ii  "delivery  of  gooi's  to 
another  person  for  n  particular  nse," 
2  Black.  Com.  376.     Judge  Story  objected 


to  the  definition  of  Sir  Wm.  Jones  be- 
cause it  implied  that  the  goods  are  to  be 
restored  or  re<lelivered,  when  in  the  case 
of  a  consignm  ?nt  to  a  factor— which  he 
maintained  was  a  bailment— no  redeliv- 
ery is  contemplated  by  the  parties,  and 
to  those  of  Blackstone  because  neither 
"a  faithful  execution"  nor  "a  particular 
use"  were  essential  injrredients  in  all 
bailments.  Having  thus  disposed  of  his 
predecessors  in  the  field.  Judge  Story 
gave  his  own  definition,  viz:  "A  deliv- 
ery of  a  thing  in  trust  for  some  special 
object  or  purpose,  and  upon  u  contract 
express  or  implied  to  conform  to  the  ob- 
ject or  purpose  of  the  trust,"  Story  Bail. 
§  2.  At  this  point  no  less  a  personage 
than  Chancellor  Kent  enters  the  arena 

0 


§5 


THE  TWO  GREAT  DIVISIONS. 


[part  I. 


made  use  of,  or  being  worked  upon,  or  with  a  view  to  its 
being  carried  to  a  particular  place  — the  relation  be- 
tween the  parties  is  obviously  the  same  in  all  these 
cases.  There  is,  first,  the  delivery  which  creates  a  trust 
in  the  i>crson  receiving  the  possession  of  the  article; 
there  is  then  the  express  or  implied  contract  by  the 
party  to  keep,  carry,  use  or  do  work  upon,  as  the  case 
may  be;  and  there  is  the  express  or  implied  condition 
to  redeliver  the  chattel  when  the  objects  of  the  trust 
shall  have  been  fulfilled.  It  is  in  transactions  in  which 
all  these  elemeuts  are  present  that  we  find  the  most 
frequent  illustrations  of  the  modern  bailment  contract; 
and  yet  some  of  them  may  be  absent  and  there  be  a 
bailment  nevertheless;  for  example: 

1.  A  redelivery  of  the  chattel  bailed  may  not  be  con- 
templated, as  in  the  case  of  the  factor^ ;  or  the  common 
carrier,  whose  contract  is  not  to  deliver  to  the  ship- 
per, i.  c,  bailor,  but  to  some  third  person  to  whom  the 
go(Kls  are  directed." 

2.  A  bailment  may  be  created  without  any  express 
agreement  to  receive  and  hold  for  a  particular  purpose. 
It  may  arise  from  the  bare  fact  of  the  thing  coming  into 
the  actual  possession  and  control  of  a  person  fortuit- 


falling  at  once  fmil  with  Judge.  Storj-  at 
the  point  where  he  had  attacked  Sir 
William  Jones.  Chancellor  Kent  refuses 
to  concede  that  a  factor  is  ahailee,  con- 
sidering that  to  apply  the  word  bailment 
to  cases  in  which  no  delivery  or  redeliv- 
ery to  the  owner  oi  his  agent  is  roiitem- 
plated  is  "extending  the  definilion  of 
the  term  beyond  the  ordinary  accepta- 
tion of  it  in  the  English  law,"  2  Kent 
Com.  §  40.  Therefore  ChanceHor  Kent 
would  deflne  the  word  as  follows:  "A 
delivery  of  goods  in  trust  upon  a  contract 
express  or  implied  that  the  trust  shall  bo 
duly  executed  and  the  goods  restored  by 
the  badee  as  soon  as  the  purpose  of  the 
bailment  shall  be  answered,"  Id.  658.  In 
the  controversy  between  these  two  emi- 

10 


nent  jurists  which  followed,  Judge 
Story's  arguments  seem  the  stronger, 
even  in  the  light  of  the  meagre  prece- 
dents in  the  books  of  his  day,  but  now, 
nearly  half  a  century  having  rolled  by, 
and  the  law  of  bailments  having  grown  as 
trade  and  commerce  have  grown  and  the 
adjudication  of  the  courts  with  them, 
the  position  of  Judge  Story  can  no  longer 
be  assailed.  The  modern  cases  iinuui- 
mously  include  the  factor  as  a  bailee. 
Morss  r.  Stone,  5  Ilarb.  510;  Uunt  v.  Wy- 
man,  100  Mass.  I'.W;  Weir  I'low  Co.  v. 
I'orter,  82  Mo.  2.S;  Foster  v.  IJash,  16 
South.  Kep.  62.5  (Ala.) 

1  Sec  the  previous  uotc. 

2  Seepo«<. 


OH.  II.] 


THE   TWO   GREAT   DIVISIONS. 


ously  or  by  mistake.^  Thus,  where  the  property  of  one 
person  is  voluntarily  received  by  another  by  delivery  of 
the  owner  for  some  different  purpose  from  that  of  keep- 
ing it,  and  upon  an  express  or  implied  agreement  of  a 
different  kind,  which  has  been  answered  or  performed, 
and  the  property  remains  in  the  hands  of  such  party 
without  further  agreement,  the  law  implies  a  contract 
for  the  keeping  of  the  property  until  it  shall  be  restored 
to  the  proprietor  or  his  agent.-  So,  where  another's 
property  comes  into  one's  hands,  through  the  owner's 
neglect.''  Necessary  or  involuutarj'  deposits,  i.  c, 
such  as  are  suddenly  and  almost  involuutnrily  made 
by  the  depositor  in  cases  of  extraordinar}-  peril  and  diffi- 
culty, such  as  in  cases  of  fire,  shipwreck,  inuudations,  in- 
surrections, attacks  by  mobs,  and  other  casualties  and 
pressing  emergencies,  the  common  law  treats  as  bail- 
ments.* So,  though  a  finder  of  a  chattel  is  not  bound  to 
take  it  up,  but  may  leave  it  where  it  lies,  yet  if  he  does 
take  it  into  his  possession  he  becomes  at  once  bound 
(without  any  actual  contract,  and  without  any  actual 
intention  to  bind  himself),  to  the  owner  of  the  property, 
for  its  safe-keeping  and  return — in  other  words,  he  be- 
comes a  bailee  of  the  lost  chattel.^'     There  is  also,  in  the 


m 


ti 


1  Phelps  t'.  People  72  N.Y.  357;  Ntnvhall 
If.  Paige,  10  Gray  3r,(!;  (.;ox  r.  Ueynolils, 
7  Iiiil.  2B7;  Osgootlby  I'.  Liembcrncr,  'i'i 
Alb.  L.  J.  114,  Story  Hail.  §  83. 

i  Smith  t>.  U.  Co.,  27  N.  U.  8G;59  Am. 
Dec.  aci. 

a  Worri.Sf.  K.  Co.,  1  Daly,  202;  A,  who 
had  rented  rooms  of  15,  at  the  expiration 
of  the  lease  went  away,  leaving  there 
some  trunks  anil  u  stove.  Held,  that 
this  was  an  invoUintary  deposit.  Preston 
V.  Neale,  12  Gray  223. 

*  There  is  another  class  of  deposits 
"which  might  indeed  tall  nnder  the  head 
of  necessary  deposits,  bnt  which  we 
have  ventured  to  call  involuntary  de- 
posits. Such  is  the  case  where  lumber 
floating  in  a  river  is,  by  a  sudden  flood 


or  freshet,  lodged  oo  tlie  land  of  a 
stranger,  and  left  there  by  the  subsi- 
dence of  the  stream.  Such,  also,  is  the 
case  of  trees  blown  bj  a  tempest  upon 
the  land  of  ii  stranger,  and  also  of  goods 
lodged  in  the  like  manner  by  a  whirl- 
winil  or  tornado  in  a  distant  fleld  of  a 
stranger.  ...  In  respect  to  the  duty 
of  the  owner  of  the  laud  to  preserve  the 
property  thus  by  accident  thrown  upon 
his  land,  it  would  probably  bo  held  that 
it  was  of  the  same  nature  and  extent  as 
that  of  an  ordinary  linder  of  goods." 
Story  Hail.  §  83  a. 

a  Smith  f.  U.  Co.,  27  N.  H.  86;  89  Am. 
Dec.  304.  He  will  be  a  gratuitous  bailee 
ortlinarilj>  except  when  by  statute  he 
may  claim  compensation  for  its  keeping. 

11 


§5 


THE  TWO  GEEAT  DIVISIONS. 


[part  I. 


civil  law  a  species  of  bailment  called  sequestration, 
which  is  a  delivery  of  property  under  a  judicial  order, 
or  a  deposit  made  by  agreement,  in  the  hands  of  an  in- 
different person,  between  the  parties  engaged  in  litigat- 
ing the  title,  until  the  same  shall  be  determined,  with 
a  stipulation  on  the  part  of  the  bailee  that  he  will  de- 
liver the  same  to  the  party  to  whom  it  shall  be  ad- 
judged.i  j^  court  officer  is  an  involuntary  depository 
of  money  which  is  paid  into  court  and  which  he  is 
obliged  to  lake  charge  of,^  or  of  articles  which  come  into 
his  possession,  even  though  there  was  no  legal  duty 
on  him  to  receive  them.^ 

Yet  it  must  be  borne  in  mind  that  as  bailment  is  a 
contract  relation,  no  one  can  be  made  a  bailee  without 
his  own  couseut,  either  express  or  implied.*  Any  kind 
of  fraud  practiced  on  the  part  of  a  borrower,  in  order  to 
procure  a  loan,  either  by  a  suppression  of  the  truth 
or  by  express  falsehood,  will  avoid  the  contract  and  ren- 
der him  liable  for  all  casualties.  In  this  contract,  it 
is  said,  more  than  in  all  othere,  the  law  demands  open- 
ness and  honesty,  and  will  not  tolerate  any  concealment 
of  facts  that  might  have  a  tendency  to  prevent  the 
loan,-^'  and  in  such  case  there  is  no  legal  delivery,  and  no 
consent  to  the  taking,  since  consent,  in  law,  is  more 
than  a  mere  formal  act  of  the  mind,  and  must  be  un- 
clouded by  fraud.**  A  pledge  obtained  by  false  repre- 
sentations of  the  creditor,  though  unredeemed  by  the 
debtor,  vests  no  interest  in  the  pledgee.'' 


1  story  Bail.  §  4G;  Edw.  Bail.  47. 

2  Aurentz  i:  I'ovtor,  5i'i  Pa,  8t,  118. 

3  Phelps  V.  People,  72  N.  Y.  .S.lt;  Jlottr. 
Pettit,  1  N.  J.  L.  2VW;  Cross  i>.  Brown,  41 
N.  n.  28.1 ;  Witowski  r.  Brennan,  41  N.  Y. 
Sup.  Ct.  284;  .Aloore  r.  State,  47  Mil.  4G7; 
28  Am.  Rep.  iH3;  Briggs  r.  Dearborn,  9!) 
Mass.  60. 

*  Lloyd  V.  West  Branch  Bk.  15  Pa.  St. 
172;  6.1  Am.  Dec.  5Kl;  .Samuels  v.  McDon- 
ald, U  Abb.  Pr.  N,  6.  344;  Michigan  Cent. 

12 


B.  Co.  V.  Carrow,  7.1  111.  348;  24  Am. 
Rep.  248;  Fay  v.  The  Xew  World,  1  Cal. 
.148 ;  Fostcrr.  Ksscx  Bank,  17  Mass.  479;  9 
Am.  Dec.  IfiS;  Green  r.  Birchard,  27  Irnl. 
483;  Bohannan  v.  Springlield,  9  Ala.  789; 
Schoul.  Hail.  75. 

s  FAw.  Bail.  ifiO ;  Story  Bail.  §  243 ;  Jones 
Bail.  70. 

G  Laws.  Contr.  Chap.  VI. 

1  Mead  i:  Bunn,  32  N.  Y.  275. 


CII.  II.] 


THE  TWO   GREAT   DIVISIONS. 


§6 


§  6.  The  Classes  of  Bailments.— The  division  of  bail- 
ments made  by  Lord  Holt,  in  Goggs  v.  Bernard,  was  mod- 
ified by  Sir  William  Jones,  who  arranged  them  un- 
der five  heads,  as  follows:  1.  Dcposittmi:  A  bare,  naked 
bailment  of  goods  delivered  by  one  man  to  another  to 
keep  gratis  for  the  use  of  the  bailor.  2.  Mandatum: 
A  delivery  of  goods  to  somebody  who  is  to  carry  them, 
or  do  something  about  them  gratis.  3.  Commodatum . 
Where  goods  or  chattels  that  are  useful  are  lent  to  a 
friend  gratis  to  be  used  by  him.  4.  Vadium,  or  Pignm, 
or  Pawn,  or  Pledge.  5.  Locatio-conductio,  a  hiring  for 
reward;  which  has  t-  je  four  divisions,  viz.:  (o)  Locatio 
mi,  the  hiring  of  a  thing  for  use;  (6)  Locatio  opcris 
facicndi,  the  hiring  of  work  and  labor  upon  a  thing; 
(c)  Locatio  custodiac,  the  hiring  of  care  or  custody  over 
the  thing;  {d)  Locatio  operis  mercium  vehendariwi,  the  hir- 
ing of  the  carriage  of  goods  from  place  to  place. 

It  is  better,  however,  to  make  of  the  subject  of  Bail- 
ments two  great  divisions,  viz. :  The  ORDINARY  and 
the  EXCEPTIONAL  bailment. 

Under  the  first  division  fall :  1st.  The  bailment  for  the 
bailor's  sole  benefit,  which  includes  depositum  and  man- 
datum.  2nd.  The  bailment  for  the  bailee's  sole  benefit, 
which  includes  commodatum.  3rd.  The  bailment  for  the 
mutual  benefit  of  bailor  and  bailee,  which  includes 
pignus,  and  locatio-conductio  with  its  four  divisions. 

The  second  division  includes  the  cases  of  innkeepers, 
common  carriers,  and  other  public  agencies,  upon 
whom,  for  reasons  of  public  policy,  the  law  has  placed 
a  somewhat  different  liabilitj*. 

When  the  bailment  is  for  the  sole  benefit  of  the  bailor, 
it  is  evidently  just,  for  reasons  stated  hereafter,  that  the 
law  should  demand  only  slight  diligence  upon  the  part 
of  the  bailee,  and  that  consequently  the  bailee  should, 
in  case  of  the  loss  or  damage  of  the  article,  only  be  liable 

13 


m 


(   ■ 


§6 


THE  TWO  GREAT  DIVISIONS. 


[PAET  I. 


for  gross  negligence.    Second,  when  the  bailment  is 
for  the  sole  benefit  of  the  bailee,  a  very  great  amount  of 
care  is  properly  demanded,  and  the  bailee  is  properly 
held  responsible  for  a  very  minor  degree  of  negligence. 
The  third  kind  of  bailment  holds  an  intermediate  place 
between  these  two.    It  is  a  delivery  for  mutual  benefit 
Each  party  is  to  be  advantaged  by  the  bailment.     In 
this  case  the  law  expects  ordinary  diligence,  or  such 
attention  to  the  object  of  the  bailment  as  a  man  ordi- 
narily bestows  upon  business  matters,  and  therefore 
ordinary  neglect  will  in  such  a  case  render  the  bailee' 
liable  for  loss  of  or  injury  to  the  article  bailed.    In  the 
fourth  class  of  bailments  the  law  has,  upon  grounds  not 
applicable  to  the  others,  thrown  generally  upon  the 
bailee  the  extraordinary  responsibility  of  an  insurer 


14 


DIVISION  I. 


THE  ORDINARY  BAILMENT. 


16 


■    .i 


(    '-' 


Sfx'1 


Cl 
01 

a 

tl 
a 
w 


CHAPTER  HI. 


THE   GENERAL   PRINCIPLES. 


Section  7.  Subject  Matter  of  Bailment  a  Chattel. 

8.  Tlie  Test  of  a  Bailment. 

9.  Tlic  Parties  to  a  Bailment. 

10.  Consideration  in  Bailments. 

11.  The  Care  and  Diligence  Required  of  Bailees. 

12.  Negligence  Defined  and  Illustrated. 

13.  Jlodiflcation  of  Liability  by  Agreement. 

14.  Modification  of  Liability  by  Acts  or  Conduct  of  Bailor. 

15.  The  Bailee's  Special  Property  in  the  Chattel. 
1(5.  Xegligence  Immaterial  in  Certain  Cases. 

17.  Bailee's  Property  Limited  to  the  Trust. 

18.  The  Trust  Duties  of  the  Bailee. 
11).  (a)  To  Hold  of  the  Bailor. 

20.  (b)  To  Follow  His  Instructions. 

21.  (c)  To  Follow  the  Contract. 

22.  (d)  To  Re-deliver  the  Thing. 

23.  Excuses  for  Non-Delivery. 

24.  Tlie  Duties  of  the  Bailor. 

2."i.  Comi)cnsation  and  Reimbursement. 

26.  Tlie  I^ieu  Upon  a  Chattel  for  Services. 

27.  The  liailee's  Lien  Generally. 

28.  Joint  Bailors  and  Bailees. 

29.  The  Termination  of  tlie  Bailment. 


§  7.  Subject  Matter  of  Bailment  a  Chattel. — Only 
chattels  personal,  or  things  movable,  which  are  capable 
of  being'  delivered,  can  be  the  subject  of  a  bailment  of 
any  kind.'  If  A,  for  example,  permits  B  to  use  his  shed, 
this  is  not  a  bailment  but  a  license,  for  the  shed  is  real 
and  not  personal  property.^  The  relation  between  one 
who  rents  another  a  house  or  lodgings  or  rooms  in  a 


1  Eaw.  Bail.  48;  Schoul.  Bail.  92. 


2  Williams  v.  Jones,  3  IT.  A  C.  266. 

17 


? 


§8 


THE  GENERAL  PKINCIPLES. 


[part  I. 


house  and  the  occupant,  is  that  of  landlord  and  t-^nant 
and  not  that  of  bailor  and  bailee.'     Yet  when  chattels 
of  B  are  deposited  with  A  in  A's  house  it  does  not  affect 
the  nature  of  the  bailment  that  some  particular  portion 
of  A's  house  is  selected  and  set  apart  for  their  use.     In  a 
New  York  case  the  defendant  was  the  owner  of  a  storage 
warehouse  in  which  the  plaintiff  had  stored  her  house- 
hold furniture.    The  space  alloted  to  her  was  enclosed 
by  wooden  partitions  with  a  door  upon  which  were  two 
locks,  the  key  of  one  of  which  was  kept  by  B.       The 
charges  were  sometimes  described  as  rent  and  some- 
times as  for  "storage."    It  was  held  that  A  was  a-  bailee 
for  hire  and  answerable  as  such.  "It  matters  not,''  said 
the  court,  "that  a  space  was  assigned  to  the  plaintiff  for 
the  storage  of  her  goods,  and  separated  from  the  rest 
of  the  room  in  which  it  was  by  board  partitions.     That 
was  by  special  arrangement  between  the  parties,  and 
the  defendant  accepted  the  goods  in  that  way.      They 
were  in  bulk  in  his  storehouse,  under  his  charge  and  in 
his  keeping,  just  as  they  would  have  been  if  they  had 
been  placed  in  a  large  box  or  in  locked-up  boxes  in  the 
same  room.     It  is  a  species  of  bailment  like  that  exist- 
ing in  the  case  of  the  depositor  in  a  safe-deposit  com- 
pany,  who  hires  a  box  for  his  valuables  and  keeps  the 
keys."2 

§  8.  The  Test  of  a  Bailment.— In  order  that  the 
bailment  relation  shall  be  created,  it  is  usually  essen- 
tial that  the  agreement  (whether  this  agreement  be  a 
matter  of  express  contract  between  the  parties  or  be 
implied  in  law),  should  intend  that  the  very  chattel 
which  is  given  into  the  hands  of  the  bailee  shall  be  re- 
delivered to  the  baUor.    Without  this  the  transaction 


1  Trust  V.  Pirsson,  1  Hilt.  292. 

2  Jones  v.  Morgan,  90N.  Y.  4;  43  Am. 
Bep.  131. 

18 


3  The  exception  is  where  no  re-deliv- 
ery is  contemplated.    See  ante,  p.  9. 


CIl.  III.] 


THE   GKNERAL   PRINCIPLES. 


§8 


may  be  a  gift  or  it  may  be  a  sale,  but  it  cannot  be  a  bail- 
ment.^ 

The  distinction  between  a  bailment  ami  a  sale  is  al- 
ways this:  When  the  identical  thing  delivered  is  to  be 
restored,  the  contract  is  one  of  bailment,  and  the  title 
to  the  property  is  not  changed.  But  v.'hen  there  is  no 
obligation  to  restore  the  specific  article,  and  the  re- 
ceiver is  at  liberty  to  return  another  thing  of  equal 
value,  he  becomes  a  debtor  to  make  the  return,  and  the 
title  to  the  property  is  changed;  it  is  a  sale.- 

If  the  identical  thing  is  to  be  returned,  it  matters  not 
that  it  is  to  be  returned  in  an  altered  form,  as  logs 
delivered  to  a  lumberman  to  be  manufactured  into 
boards,''  or  grain  delivered  to  a  miller  to  be  ground 
into  ilour,^  or  cotton  delivered  to  manufacturers  to  be 
turned  into  printed  calico."  Nor,  it  is  held,  is  the  char- 
acter of  the  transaction  changed  when  grain  delivered 
at  a  mill  to  be  ground  or  at  an  elevator  to  be  stored  is 
by  usage  or  agreement  mixed  with  other  grain  of  the 
same  kind,  the  return  to  be  made  out  of  the  common 


i?ii 


mass. 


6 


i 


;■! 


1  Powder  Co.  r.  nnrkharUt.HT  V.  s.  IKi; 
IJrc'tzr.  Diohl,  117  I'a.  St.  nw);  2  .\m.  St. 
Rop.  70r. ;  Norton  r.  Woodruff,  2  N.  Y.  l.')4 ; 
Sejmoui  r.  Wjckoff,  ION.  Y.  210;  Kucd  v. 
Abbey,  2  Thonip.  &('.  HSn ;  Unrdr.  West,  7 
Cow.  752;  Inglebright  v.  Hammond,  11) 
Ohio,  3.S7;  an  Am.  Doc.  4H0;  Chiise  r. 
Washburn,  1  Ohio  St.  224;  59  Am.  Dec. 
62.S ;  Buttorfleld  r.  Lathrop,  71  I'a.  St.  225; 
Johnson  v.  Hiiker,  in  Iowa,  200 ;  Bloore  v. 
Holland,  .TO  Me.  .S07;  Slaughter  r.  Green, 
1  Hand.  S;  10  Am.  Dec.  488;  Marsh  v.  Ti- 
tns,  CThomp.  &C.  2!»;  .Sllun.S.W;  Hnffum 
V.  Merry,  3  Srason,  478;  Ewingr-.  Frencli, 
1  niackf.  353 ;  Baker  1'.  Woodmff,  2  Barb. 
520. 

f  Bronson,  C.  J.,  in  Mallory  r.Willis,  4  N. 
Y.  76;Uahillyf.  Wilson,  3  Dill.  420;  Aus- 
tin V.  Selipman,  18  Fed.  Hep.  5UI;  Wilson 
V.  Finney,  13  Johns.  858;  AVcstcottt'.  Til- 
ton,  IDuer.  53;  Westcottr.  Thompson,  18 


N.  Y\  3f,.T;  Hyde  r.  Cookson,  21  Barb.  92; 
Becker  r.  Smith,  5'J  I'a.  St.  4(>7 ;  Boarg  r. 
Lopez,  30   La.  An.  43;i. 

3  Baker  V.  Uoberts,  8  (irccnlf.  101;  Mal- 
lory r.  Willis,  4  N.  Y.  77. 

4  Malliiry  r.  Willis,  4  N.  Y.  76;  Foster 
V.  I'ettilione,  7  N.  Y.  433  ;  57  Am.  Dec.  530 ; 
Smith  V.  Clark,  21  Wend.  83;  ,34  Am.  Dee. 
213;  ISretz  i:  Diehl,  117  Pa.  St.  589;  2  Am. 
St.  I!ep.  7nii. 

5  Wood  r.  Orser,  25  N.  Y.  350. 

«  Slanirhtert'.  (ireen,  1  Hand.  3;  10  Am. 
Dec.  488;JIallory  r.  Willis,  4  N.  Y.  77; 
Chase  V.  Washburn,  1  Ohio  St.  251;  59 
Am.  Dec.  C2.'! ;  In>;lebrijrht  t'.  Hammond 
19  Ohio,  337;  53  Am.  Dec.  430;  Bretz  t'. 
Diehl,  117  Pa.  St.  589;  11  Atl.  Rup.  893; 
Andrews?'.  Richmond,  34  Unn.  20;  Led- 
yard  v.  Hibbard,  48  Mich.  421;  42  Am. 
ilep.  474,  12  N.  W.  Rep.  637;  Nelson  v. 
Brown,  44  la.  455. 

19 


§8 


THE   GENERAL   PRINCIPLES. 


[part  I. 


It  is  a  bailment  wliere  goods  are  sold  by  A  to  B,  the 
agreeineut  being  that  they  are  to  remain  the  property 
of  A  until  paid  for,'  or  to  be  returned  to  A  if  not  paid 
forr  where  one  receives  goods  from  another  with  a 
right  to  tiy  them  and  to  purchase  or  retu...  them  if  not 
suitable;''  where  a  person  is  given  a  right  to  use  the 
goods  for  a  certain  time  with  the  privilege  of  purchas- 
ing them  during  or  at  the  end  of  that  time;'  where 
goods  are  received  to  be  sold  and  accounted  for  to  the 
owner/'  So  a  vendor  who,  after  a  sale  is  completed 
and  the  title  has  passed,  agrees  to  store  or  deliver  the 
property,  is  a  bailee."  In  all  those  cases  but  the  last, 
the  title  remains  in  the  original  owner. 

On  the  other  hand,  where  the  title  to  the  property 
passes  with  a  right  in  the  vendor  to  rcsc^ind  it  for  cause, 
it  is  a  conditional  sale  and  not  a  bailment.^ 

The  deposit  of  money  in  a  bank  is  not  a  bailment,  for 
it  is  not  intended  that  the  banker  shall  return  to  the 
depositor  the  identical  coin  or  bank  notes  he  received, 
but  only  the  amount  of  the  deposit  in  any  legal  tender." 
And  the  same  is  true  of  all  loans  of  money,  and  of  all 


1  Harringtonr.  King,121Mass.2(>7;Diin- 
lap  V.  (Jleason,  IG  Mich.  l.W; '.«  Am.  Dec. 
2;)1 ;  Kohli-r  v.  naves,  41  Cal.  i:>r> ;  Kin;,'  r. 
Rates,  B"  X.  H.  44i!;  Wheeler  &  etc.  Co.  r. 
ricil,  115  I'a.  St.  4H7;  2  Ain.  St.  Hop.  575; 
8  Atl.  Uep.  GIG;  Henry  t'.  Patterson, 57  I'a. 
St.  346. 

2  Porterr.  reUenpill,  12  X.  U.  209. 

3  Hunt  I-.  AVyniaii,  UK)  JIass.  U«;('oUon 
r.  Wise, 7111.  (App.)  .S;i.5.  I'laintiffs  deliv- 
ered certain  jewelry  to  one  It.,  with  a 
niemoraiidiim  to  the  effect  that  it  was 
sent  lor  his  inspection,  that  it  belonged 
to  plaintiffs,  and  that  it  was  to  be  re- 
turned to  them  on  demand,  and  that  sale 
would  take  effect  only  from  their  ap- 
proval of  K.'s  selection,  the  goods  to  be 
held  until  then  subject  to  their  order. 
Held,  that  the  paper  showed  a  bailment 
merely,  and  not  a  conditional  sale.— 
Enrapt  I'.  Barto  .S8  Pac.  Uep.  11'2!1  (Wash.) 

4  Chamberlain  i:  Smith,  44  Pa.  at.  431; 


Dunlnpt.  G'ie<  ;on,  ir>  Mich.  15H;  m  Am 
Do. ,  2.il ;  SarjA'  nt  v.  llile,  H  N.  U.  .TA'i. 

o  Mon-s  r.  Stone,  B  IJarb.  BIG;  Furlow 
r.  (ii'ii.ir,,  7  I  Tex.  2.50;  Middletonr.  Stoue, 
111  Pa.  .'^t.  587;  4  All.  Uep.  B23. 

6  Oakley  v.  State,  40  Ala.  .S72; 

7  liryaut  v.  Crosby,  3G  Me.  B62 ;  58  Am. 
Dec.  767;  sec  Ileryford  v.  Davis,  102  U.  S. 
2.S5. 

«  4  :,a.vs,  Itights,  Hem.  &  Pr.  IGHG ;  Story 
Hail.  §  HH.  The  transaction  amounts  to  a 
loan  with  or  without  interest,  and  cre- 
ates the  relation  of  debtor  and  creditor; 
the  bank  receives  the  money  deposited 
and  undertakes  to  repay  the  same  on  de- 
mand at  all  events.  Tlio  fund  is  mingled 
with  other  moneys  and  becomes  an  ab- 
solute debt  duo  from  the  bank,  for  which 
it  is  liable  tven  though  the  money  be 
lost,  without  any  fault  on  its  part.— Kdw. 
Bail.  66. 


i 


20 


OH.  III.] 


THE   QKNIOUAL   PRINCIPLES. 


88 


loans  of  other  kinds  of  chattels  which  are  intended  to 
be  consumetl  by  the  borrower  and  their  equivalent 
in  kind  and  amount  returned  to  the  lender."  It  is  only 
where  the  banker  receives  the  thing  as  a  special  deposit 
to  be  returned  exactly  as  received,  as  a  bag  of  gold  or  a 
bond  or  other  chattel,  that  he  becomes  a  bailee.-  The 
leading  case  of  this  kind  is  Foster  v.  Enficx  Bank^'^  where 
the  deposit  consisted  of  a  large  quantity  of  gold  placed 
in  a  chest  locked  and  left  at  the  Essex  Bank  "for  safe 
keeping,''  the  depositor  taking  the  key  with  him.  The 
cashier  or  chief  clerk  of  the  bank  fraudulently  took  of 
the  gold  deposited  thirty-two  thousiiud  dollars,  and  ab- 
sconded, and  it  was  held  the  bank  was  not  liable,  inas- 
much as  its  officers  had  taken  the  same  care  of  the  de- 
posit as  they  did  of  their  own  funds. 

A  loan  for  consumption,  called  a  mutiiion,  was  recog- 
nized as  a  bailment  by  the  civil  law,  where,  for  «.'xample, 
the  bailee  was  bound  to  deliver,  not  the  speciiic  article 
lent  to  him,  but,  at  his  opportunity,  something  of  the 
same  kind,  as  where  the  thing  received,  such  as  com, 
wine,  oil,  or  money,  was  to  be  returned  in  kind.  But 
this  species  of  bailment  is  unknown  to  our  law.^ 

Where  goods  are  ordered  to  be  made,  while  they  are 
in  progress,  the  materials  belong  to  the  maker.  Tlie 
propert3'  does  not  vest  in  the  party  who  gives  the  order 
until  the  thing  ordered  is  completed.  And  although 
while  the  goods  are  in  process  of  being  made,  the 
maker  may  intend  them  for  the  person  ordering,  still  he 
raaj'  afterwards  deliver  them  to  another  and  thereby 


I 


1  Caldwell  r.  nail,  60  Miss.  330;  45  Am. 
Rep.  410;  Shoemaker  v.  lliiize,  f>3  Wis. 
116;  ION.  W, Rep.  86;  Rankin  r.  Craft,  1 
Heisk.  711;  Cabaniss  v.  Ponder,  65  Gn. 
1,34;  Howard  v.  Rocben,  33  Cal.  399; 
Hathaway  v.  Brady,  26  Cal.  581 ;  Chiles 
f.  Garrison,  32  Mo.  475. 


-  Howers  f.  Kvans,  71  Wi.s.  13.1;  36  N. 
\V.  Rep.  G29. 

■■!  17  Mass.  479;  9  Am.  Dee.  1C8. 

■4  Story  Rail.  §  228;  Schoul.  Rail.  5,  75; 
Kdw.  Rail.  186.  But  sec  Fosdi(;k  »•. 
Greene,  27  Ohio  .''t.  484 ;  22  Am.  Rep.  328. 

21 


§8 


THE  GENERAL   PRINCIPLES. 


[part  I. 


rest  the  property  in  the  party  so  receiving  them.'  But 
where  the  owner  of  a  chattel  delivers  it  to  another  to  be 
repaired  and  renovated  by  the  labor  and  materials  of 
the  latter,  the  property  in  the  article  as  thus  repaired 
and  improved  is  all  along  in  the  original  owner  for 
whom  the  repairs  were  made  and  not  in  the  i)erson  mak- 
ing them.  And  the  original  owner,  so  far  from  losing 
his  general  property  in  the  thing  thus  placed  in  the 
hands  of  another  person  to  be  repaired,  acquires  that 
riiiht  to  whatever  accessorial  additions  are  made  in 
brinj,dng  it  to  its  new  and  improved  condition.-  Nor 
does  it  make  any  difference  that  the  labor  and  materials 
put  upon  the  article  greatly  exceed  in  value  (hat  of  the 
article  when  it  was  delivered  to  the  bailee.  Thus  in  one 
case,^  A  sent  to  B,  a  wagon-maker,  an  old  wagon  which 
when  repaired  by  him  was  worth  .'lOO,  but  B  in  repairing 
it  had  expended  in  time  and  material  nearly  |80.  It 
was  held,  nevertheless,  to  be  a  bailment."* 

The  distinction  is  very  important.  If  A  delivers  his 
wheat  to  a  miller  to  be  ground  into  flour  and  before  A 
receives  his  flour  it  is  destroyed  by  fire  or  other  cause, 
the  loss  falls  on  A  unless  the  miller's  negligc^nce  con- 
tributed to  the  loss.    On  the  other  hand,  if  A's  wheat 


\ 


1  Gregory  r.  Strvkcr,  2  Denio,  628  cit- 
iug  2  Kent's  Com.  ?,.;i ;  Morritt  t'.  John- 
son, 7. Johns.  47;!;  5  Am.  Dec.  2'><);  1  Chit, 
n..  7th  Am.  ed.,  .SSI ;  Atkinson  r.  Bell,  8 
Barn.  &  C.  277;  2  Cliit.  Com.  L.  270. 

2  Gregory  r.  Stryker,  sH;)r«. 
Gregory  v.  Stoker,  2  Denio.  fi2S. 
"The   general   property,"    said    the 

Court,  "must  be  in  one  party  to  the  ex- 
clusion of  the  other,  for  surely  they  are 
nottcnnnts  in  conmion  of  the  thing  re- 
pi.ircd.  Shall  we  then  say,  ♦hat  where 
the  v,.lna  of  the  repairs  falls  below  that 
of  the  dilapidated  article  on  which  they 
were  made,  the  original  owner  has  title 
to  the  article  in  its  improved  condi- 
tion; ami  vice,  versa,  where  they  exceed 
it  in  value,  title  to  the  article  as  repaired 

22 


and  improved,  passes  over  to  the  person 
by  whom  the  repairs  were  made?  Such  a 
nile  would  certainly  be  plain  enough,  and 
probably  mii;ht  be  applied  without  great 
difllculty,to  any  particular  case.  But  it 
would  be  found  topiverise  to  a  variety  cf 
questions  Sever  heard  of  in  actions  grow- 
ing out  of  the  reparation  of  di'cayed  or 
injured  articles  ;  and  the  rule  itself,  I  nm 
pursu.idcd,  has  not  so  much  as  the 
shadow  of  iiuthority  for  its  support.  The 
principle  contended  for  by  the  defendant 
is  not  necessary  for  the  security  of  the 
mechanic  by  whom  the  repairs  are  made. 
He  has  a  lien  for  his  labor  and  materials, 
and  may  retain  possession  until  liis  jnst 
demands  are  satislled." 


CII.  III.] 


THE    GENERAL   PRINCIPLES. 


§» 


was  delivered  to  the  miller  to  be  paid  for  in  other  flour, 
the  miller  has  at  once  become  a  debtor  to  A  for  the 
quantity  of  flour  agreed  upon,  and  eA'en  if  all  his  flour 
is  destroyed  he  will  be  obliged  to  obtain  other  flour  with 
which  to  pay  his  debt  to  A.  And  the  distinction  is  also 
important  when  claims  of  creditors  of  the  bailee  inter- 
A'ene.* 


§  9.  The  Parties  to  a  Bailment. — The  person  in 
whose  possession  the  chattel  is,  is  called  the  bailee;  the 
owner  or  the  )ue  who  intrusted  the  possession  to  the 
bailee  is  called  the  bailor.  The  bailment  being  a  con- 
tract relation,  the  parties  thereto  must  be  capable  of 
contracting.  The  subject  of  the  capacity  of  parties  to 
enter  into  contracts  is  fully  discussed  in  my  work  on 
Contracts  and  need  not  be  repeated  here.- 

The  law  makes  a  man  responsible  for  acts  done  by 
those  whom  it  denominates  his  servants  (but  who  are 
frequently  called  agents  or  employes),  while  engaged  in 
the  business  or  work  in  which  he  employs  them.  If 
the  relation  of  master  and  ser^'ant  subsisted  between 
them  on  the  particular  occasion,  and  the  seiwant  mal  c-s 
a  careless  mistake,  either  of  omission  or  commission, 
the  law  holds  it  to  be  the  master's  business  negligently 
done;  but  it  does  not  presume  that  the  seiwant's  willful 
act  of  mischief  is  the  act  of  his  principal;  nor  does  it 
presume  that  the  relation  of  master  and  servant  ex- 
tends to  that  particular  act;  on  the  contrarj',  the  pre- 
sumption of  law  is  that  the  master  did  not  intend  nor 
assent  to  an  act  in  itself  criminal.     lie  is,  therefor?,  an- 


1  "Tf  the  trnnsaction  ■was  a  conditional 
sale,  wlu'thcr  in  form  or  in  substance,  wo 
liavo  hold  the  titlo  in  tho  vendee,  and 
therefore  sub'  t  to  tlio  claims  of  his 
creditors;  but,  i  it  was  a  bailment,  we 
have  held  the  title  in  the  bailor,  and  not 


subject  to  any  claims  of  the  vendee's 
creditors."  Ilrown  r.  Billington,  29Atl. 
nop.  905  (Pa.) ;  Monjo  f.  French,  Td  907; 
Ferpnsoni'.  Lauterstein,  28  Atl.  Eep.  862 
(I'a.) 
2  See  Laws.  Contr.  Chap.  V. 

23 


§10 


THE   GENERAL   PKINCIPLES. 


[part  I. 


swerable  for  his  servant's  negligence  and  want  of  skill, 
but  not  for  his  willful  injuries.  These  familiar  princi- 
ples illustrated  also  in  a  subsequent  chapter,  apply  in 
all  their  force  to  the  ordinary  bailee.^ 


''I 


§  10.  Consideration  in  Bailments.— The  rule  is  ele- 
mentary that  every  contract  requires  a  consideration 
to  support  it,  a  mere  naked  promise  being  nudum  pactum 
ajid  unenforceable.-  If  A  promise  B  to  give  him  his 
horse  or  to  lend  him  flOO,  and  there  is  no  benefit  to  A 
or  any  detriment  to  B  arising  out  of  the  transaction,  B 
has  no  remedy  if  A  changes  his  mind.  The  same  must 
logically  be  the  result  if  A  breaks  his  promise  to  store 
B's  box  in  his  house  or  to  carry  B's  trunk  to  the  next 
town  without  charge;  and  one  can  not,  therefore,  be 
sued  for  refusing  to  carry  out  his  promise  to  become  a 
gratuitous  bailee.^ 

But  the  sers-ice  once  undertaken,  the  conditions  are 
changed.  The  act  of  eptrusting  a  thing  with  another, 
and  his  undertaking  the  care  of  it,  the  law  considers  a 
sufficient  consideration  for  his  faithful  discharge  of  the 
trust.  The  custody  of  the  property  is  parted  with  on 
the  faith  of  the  owner  in  the  integrity  and  care  of  the 
person  to  whom  it  is  delivered;  and  though  he  engages 
to  keep  it  gratuitously  he  is  responsible  for  a  faithful 
execution  of  the  trust  reposed  in  him  on  the  ground  that 
his  failure  to  keep  the  promise  made  or  the  undertaking 
implied  by  law,  works  an  injury  or  prejudice  to  the 


\ 


% 


1  See  Schonl.  Bail.  U2, 143 ;  Emerson  v. 
Fisk,  6  Greeiilf.  200;  19  Am.  Dec.  20G; 
Woodward  i'.  Cutter,  38  Vt.  49;  Hall  v. 
AVarner.fiO  Barb.  198 ;  i«t.  I.osky  v.  navid- 
son,  6  Cal.  643;  Androscoggin  R.  Co.  w. 
Anbnrn  Bank,  48  Me.  33.5;  Commercial 
IJankr.  Martin,  1  La.  Ann.  344;  4.5  Am. 
Dec.  87;Aldrichr.  R.  Co.  100  Mass.  31;  i 
Am.  Rep.  76. 

24 


2  Laws.  Contr.  §  91, 

3  Thome  f.  ])cas,  4  .Johns.  84;Rlseev. 
Gatward,  5  Term  Rep.  143;nalfe  v.  West, 
13  Com.  B.  iGG;  Samuels  r.  McDonald,  11 
Abb.  r>r.,  N.  S.,  m;  McGee,  v.  Bast,  G  J. 
J.  Marsh,  4,55;  Fellowes  r.  Gordon,  8  TJ. 
iMon.  415;  Ferguson  v.  Porter,  3  Fla.  88; 
Jenkins  r.  Bacon,  111  Muss.  373;  15  Am. 
Rep.  33, 


\^^ 


OH.  III.] 


THE   GENEEAL   PRINCIPLES. 


§11 


party  with  whom  the  agreement  is  made.*  Therefore, 
though  A  could  not  be  sued  for  failing  when  the  time 
came  to  take  B's  trunk,  yet  if  he  did  take  it  and  on  the 
way  negligently  lost  it,  he  would  be  liable  for  its  value, 
though  he  were  to  have  nothing  for  his  pains.^ 

§11.  The  Care  and  Diligence  Required  of  Bailees. 

— The  most  important  question  in  the  law  of  bailments 
is  the  amount  of  care  which  a  man  has  a  right  to  expect 
from  another  in  whose  possession  his  goods  are,  under 
the  various  circumstances  of  the  case,  and  the  amount 
of  the  responsibility  of  him,  the  bailee,  for  negligence 
or  want  of  care.  The  law  never  permits  negligence  of 
any  kind  in  the  execution  of  a  contract,  but  its  rule 
varies  as  to  the  degree  of  care  it  exacts  under  varying 
circumstances.^  There  are  many  shades  of  care  "from 
the  slightest  momentary  thought  or  glance  of  attention 
to  the  most  vigilant  anxiety  and  solicitude,"*  but  the 
law  is  not  satisfied  with  the  first  nor  does  it  exact  the 
second.  The  word  negligence  is  a  negative,  not  a  posi- 
tive word.  Negligence  is,  after  all,  simply  the  absence 
of  care  according  to  the  circumstances  of  the  particular 
case.  The  want  of  a  verj*  high  degree  of  care  is  slight 
negligence;  the  want  of  ordinary  care  is  ordinary  negli- 
gence, while  the  want  of  any  care  at  all  is  gross  negli- 
gence. It  has  indeed  been  questioned  by  high  judicial 
authority  whether  any  intelligible  distinction  exists  be- 
tween negligence  and  gross  negligence,^  and  it  is  said 


1  Edw.  Bnll.  fi8;  Laws.  Kights,  Rem. 
and  I'r.  §  1092;  McCauIay  v.  Davidson,  10 
Minn.  418;  Kddy  r.  Livingston,  85  Mo. 
487;  88  Am.  Doc.  122;  Jenkins  v.  Motlow, 
1  Snecd,  248 ;  CO  Am.  Dec.  154 ;  Whitney  v. 
Ia'q,  8  Mete.  91 ;  Kirklandr.  Montgomery, 
1  Swan.  4.12;  (iraves  v.  Ticknor,  6  X.  U. 
631;  Smcdes  v.  Hank,  20  Johns.  37";  3 
Cow.  8r,2;  Kellogg  r.  Sweeney,  I  Lans. 
402;  Uoulston  v.  McClelland,"  2  K.  D. 
Smith,  60;  Rutgers r.  Lucot,  2  Johns,  ('as. 


92;  A  reciprocal  benefit  between  bailor 
and  bailee,  from  the  de|iosit  of  the 
former's  picture  in  the  hitter's  gallery,  is 
a  sutlleient  consideration  to  support  a 
promise  to  take  care  of  the  picture. — 
llardeggf.  M'illards,  3.S  N.  Y.  S.  25. 

2  4T^iws.  Rights,  Rem.  and  IV.  §  1709. 

3  Edw.  Bail.  44. 

4  Jones  Bail.  4,  5. 

s  Denninn  C.  J.  in  Ilinton  v.  Dibbin, 
2  CJ.  IJ.  64G. 

25 


i 


(■  "■ 


§12 


THE  GENERAL   PKIXCIPLES. 


[part  I. 


tbiit  the  latter  is  the  same  as  the  former  pitis  a  vitu- 
perative epithet/  and  that  any  negligence  is  gross  in 
one  who  undertakes  a  duty  and  fails  to  perform  it.- 
But  it  seems  to  be  conceded  that,  as  iu  the  law  of  bail- 
ments, there  is  a  difference  between  the  degree  of  neg- 
ligence for  which  different  classes  of  bailees  are  respon- 
sible, the  terms  "gross,"  "slight"  and  "ordinaiy"  may  be 
usefully  retained  as  descriptive  of  that  difference  until 
at  least  some  better  terms  are  invented.^ 


§  12.  Negligence  Defined  and  Illustrated.— Negli- 
gence is  the  absence  of  that  care  or  diligence  which  the 
circumstances  of  the  case  call  for.  What  would  be  care 
under  one  sot  of  circumstances  would  not  be  so  under 
another;  what  would  be  diligence  with  one  kind  of  a* 
chattel  would  not  be  so  with  another;  what  would  be 
care  in  one  place  would  not  be  in  another;  and  hence  it 
will  be  found  that  the  circumstances  which  may  be  de- 
cisive in  deciding  as  to  the  sufficiency  of  the  care  exer- 
cised by  a  bailee  iu  the  carrying  out  of  his  trust  may 
be  classed  under  four  heads— viz.:  1.  The  nature  and 
value  of  the  article.  2.  The  customs  of  the  place  or 
trade.  3.  The  condition  of  the  countiy  or  climate. 
4.  The  condition  of  the  time. 

1.  Articles  of  great  value,  such  as  may  be  easily  in- 
jured, demand  a  greater  degree  of  care  than  those  of 
less  value.  A  man  who  would  carrv-  glass  with  as  little 
care  as  he  would  iron,  would  certainly  be  guilty  of  neg- 
ligence. The  same  care  need  not  be  taken  of  the  can- 
vas upon  which  a  picture  is  about  to  be  painted  as  that 
upon  which  a  picture  actually  is  painted.    A  load  of 


J  Rolfe  15.  in  Wilson  v.  Brett,  11  M  & 
W.  113. 

2  WiUcs  J.  in  I/)r(l  v.  H.  Co.,  L.  U.  2  C. 
!••  HO;  I'hila.  ]{.  Co.  ,•.  Kinjr,  14  IIow.  4as' 
The  New  World  v.  King,  14  IIow.  4r,9;' 

20 


Storcr  V.  (iowen.  IS  Mi>.   177;  llriirKR  r. 
Taylor,  28  Vt.  is,'). 

3  liiblint'.  McMiilliii,  I,.  U.  21'.  C.  XW; 
First  Nat.  I!k.  r.  Uceau  lik.  GO  X.  Y.  278; 
19  Am.  Hop.  isi. 


|P'' 


CII.  III.] 


THE    GENERAL    PllINCIPLES. 


§12 


stone  or  coal  or  wood  might  be  left  uncovered  and  un- 
protected from  the  elements,  while  a  similar  course  as 
to  a  library  of  costly  books  would  be  highly  censurable. 
So,  if  an  article  is  so  heavy  that  it  can  be  carried  away 
only  with  great  ditficulty — a  block  of  marble  or  a  ship's 
anchor,  for  example — it  is  not  necessary  to  guard  it  or 
lock  it  up  against  thieves,  while  a  box  of  jewels  or  a 
bag  of  money  requires  a  different  kind  of  care  and  vigi- 
lance. Of  course,  the  bailee  must  be  informed  of  the 
value  of  the  thing  he  has.  It  is  very  evident  that  the 
care  demanded  of  the  bailee  of  a  locked  chest  contain- 
ing jewels,  would  be  very  much  lessened  by  the  fact 
that  he  was  not  made  acquainted  with  its  contents,  lie 
would  not  be  required  to  presume  that  it  contained 
jewels,  nor  to  keep  it  with  the  care  with  which  he 
should  guard  that  kind  of  property.* 

2.  What  every  one  around  me  does  without  danger,  I 
can  hardly  be  blamed  for  doing  also,  and  if  in  so  acting 
the  thing  in  my  custody  is  lost  or  damaged,  it  would  be 
unjust  to  hold  that  the  chance  mishap  had  made  me 
guilty  of  negligence,  for  what  one  can  not  foresee,  one 
ought  not  to  be  punished  for  not  foreseeing.  Hence, 
how  one's  neighbors  act  under  similar  circumstances  is 
generally  a  sullicient  guide.-  In  a  Massachusetts  case 
it  is  said:^  "If  the  defendants  exercised  due  and  ordi- 
nary care  in  the  custody  of  the  property,  they  cannot 
be  charged  for  its  loss.  What  constituteil  such  care 
was  a  question  of  fact,  to  be  judged  of  with  reference 
to  all  the  circumstances,  and  especially  with  reference 
to  the  degree  of  care  which  other  persons  engaged  in 
similar  business  in  the  vicinity  were  in  the  habit  of  be- 
stowing on  property  similarly  situated.     The  standard 


<  1 


I 


1  Jones  Hail.  3S ;  VA\y.  Bail.  72. 

2  Ilrowiie  Cai  T.  §  '.);  Laws.  Us.  anilCust. 
{168. 


3  Cass  I!.  U.  Co.,  14  AUun.  448;  and  see 
I.cehtenhoiu  r.  11.  Co,,  11  Cush.  70;  Chen- 
owith  f.  Dickinson,  S  It.  .Mou.  15U. 

27 


§12 


THE   GENERAL  PRINCIPLES. 


[part  I. 


of  ordinary  care  varies,  necessarily,  in  different  locali- 
ties. One  degree  of  diligence  would  be  required  for 
the  city  and  a  less  or  greater  for  the  country',  depending 
on  a  great  variety  of  circumstances.  The  defendants 
offered  to  prove  that  there  was  exercised  by  them  in  re- 
lation to  this  property  that  care  which  other  railroad 
corporations  in  Boston  usually  exercised  in  relation  to 
such  property.  Tlie  court  excluded  this  evidence,  and 
on  this  g)'9iini  exceptions  are  well  taken."      The 

question  in  ar,  "  ,ia  case^  was  whether  a  bailee  had 

been  guilty  of  negligojice  in  going  into  a  cotton  gin 
house  with  au  oi^en  lami>  "nd  the  court  said  that  this 
must  be  determined  uy  t'x;  rnsTer  to  another  question 
viz.:  "What  is  the  general  custom  of  gin  holders  in  re- 
gard to  carrj'ing  lights  about  their  gin  houses  when 
they  contain  cotton?"-  Where  an  agent  was  sued  by 
his  principal  for  .f 20,000  belonging  to  the  latter  which 
had  been  stolen  from  him,  and  it  appeared  that  the 
money  was  at  the  time  of  the  loss  kept  in  an  iron  safe 
in  a  room  usually  occupied  by  two  persons,  but  then 
left  unguarded  and  not  very  secure,  it  was  held  compe- 
tent for  him  to  show  that  custodians  of  money  do  not 
usually  look  to  doors  or  windows  for  protection,  but  to 
their  vaults  and  safes.^  And  where  the  question  was 
whether  a  guest  at  a  hotel  had  been  guilty  of  negligence 
in  leaving  the  key  in  the  door  of  his  room,  in  wliich  was 
a  large  sum  of  money,  evidence  of  the  usage  of  guests 
at  the  hotel  of  leaving  keys  in  the  doors  of  their  rooms 
was  held  to  be  relevant.^  The  drivers  of  horses  and  car- 
riages on  the  highways,^*  and  the  masters  and  pilots  of 
ships  and  steamboats  on  the  waters,"  must  follow  the 


i 


1  Maxwell  V.  Eason,  1  Stow.  114. 
a  Ami  see  Brown  v.  Ilitchcock,  28  Vt. 
462;  McKibboQ  r.  IJnkcrs,  1 IJ.  Mon.  122. 

3  Wright  r.  Contral  U.  Co.,  IGGa.  38. 

4  IJorkshire  Woolen  Co.  r.  Proctor,  7 
Cnsh.  417. 

28 


5  Ix'amc  v.  15ray,  3  Kast,  59,1;  Tneley  v. 
Thomas,  H  ("ar.  &  P.  104 ;  Bolton  r.  Caldor, 
1  Watts,  ,1G0. 

6  Morrison  r.  (Jencral  Steam  Nav.  Co., 
SKxch.  7.33;  Ueneral  Htoatn  Nav.  Co.  i. 
Morrison,  13  C.  B.  C81;  Biirrett  t>.   Wil- 


j 


\ 


CII.  III.] 


THE   GENERAL   PRINCIPLES. 


§12 


\ 


customary  mode  of  passing  each  other,  and  a  failure  to 
comply  with  such  custom  will  amount  to  negligence. 

3.  Men,  says  Mr.  Browne,^  do  not  turn  their  horses 
into  a  quagmire  any  more  than  ants  carry  out  their 
pupae  into  the  frost.  There  is  no  want  of  care  in  him 
who  takes  out  a  book  on  a  summer  day  and  leaves  it  on 
his  own  lawn.  The  same  act  done  under  clouds  in  mid- 
winter would  be  negligent.  The  man  who  lies  on  his 
back  on  a  hill-side  and  stares  up  into  the  sky  is  running 
little  or  no  risk  if  the  weather  is  fine,  but  the  same  gaz- 
ing at  the  same  sk}-,  where  the  stars  ought  to  be,  would 
be  rash,  if  he  had  a  rail  under  his  neck  and  a  rail  under 
his  feet  and  the  express  was  due.  Of  course,  these  are 
extreme  cases. 

4.  Wliat  was  negligence  fifty  or  a  hundred  years  ago 
might  not  be  negligence  now,  and  what  was  diligence 
then  might  be  negligence  now.  In  primitive  limes 
flocks  were  pennitted  to  roam  unattended  at  night,  but 
if  conditions  had  changed  and  it  had  beconn*  necessarj' 
to  pen  them  in  folds  at  night,  to  omit  to  do  so  would  be 
a  want  of  diligence.  In  many  parts  of  America  as  late 
as  Story's  day-  it  was  usual,  at  least  in  the  newly  settled 
districts,  to  leave  not  only  barns  and  stables,  but  even 
dwelling  houses  unlocked  at  night.  But  even  then,  in 
the  cities,  where  the  temptation  was  more  pressing,  it 
would  have  been  deemed  a  great  want  of  caution  to  act 
in  the  same  manner;  and  to-day,  the  tramp  being 
abroad  on  all  our  highways,  it  would  show  a  lack  of 
care  and  prudence  almost  everywhere.  To  ascertain 
what  is  negligence  "one  must  understand  to  some  ex- 


y   * 


liaiiihon,  4  McLean,  B!C>;  Myers  r.  Terry, 
I  iM.  An.  373;  The  City  of  Washington, 
92  U.  S.  31;  The  Clement,  2  Curt.  .SG3; 
Jones  V.  I'itchcr,  3  .Stew.  &  1'.  1.35;  Hoyce 
f.  The  Knipress,  3  West.  L.  J.  174;  Drew 
V.  The  Chesapeake,  2  Uoug.  .33;  Uarcliug 


r.  The  Maverick,  5  L.  U.  100;  Domingo  t». 
Merchants'  lus.  Co.,  I'J  La.  An.  4H1 ;  Samp- 
son V.  Hand,  C  Whart.  .324. 

1  lirowne  Carr.  §  10. 

2  Story  Bail.  §  II. 

20 


§13 


TTIK   GENERAL   P.-^INCIl'LES. 


[part  I. 


tent  the  nature  and  spirit  of  the  times.  A  gang  of  rob- 
bers in  our  neighborhood  Avould  make  us  more  careful 
of  our  own  property,  and  therefore  those  whose  property 
we  have  in  keeping  have  a  right  to  expect  an  equal 
amount  of  care  for  their  interests.  In  lawless  times  it 
might  have  been  negligence  not  to  have  possessed  a 
bhmderbuss,  but  tnat  can  not  be  said  of  to-day.  Where 
the  laws  are  bad,  an  individual's  own  care  is  the  more 
necessary.  A  man  on  an  island  need  not  build  a  wail 
to  keep  out  his  neighbor's  cattle,  and  so  the  police  of  a 
country  are  a  kind  of  wall  around  a  man's  dwelling;  the 
existence  of  such  an  institution  will  necessarily  lighten 
the  responsibility  of  each  private  iudividual."^ 

§  13.    Modification  of  Liability  by  Agreement.— 

If  a  bailee  contracts  to  take  more  care  than  that  which 
the  law  requires  him  to  take,  his  liability  will  be  en- 
larged according  to  the  terms  of  his  contract,  as,  for 
example,  where  he  promises  to  keep  or  carry  the  goods 
safely-  or  says  "I  will  warrant  the  goods  shall  go  safe."^ 
But  a  mere  Jiromise  to  return  a  thing  or  to  return  it  in 
good  order  is  not  usually  construed  to  insure  it  against 
losses  or  casualties  occurring  withoutthe  bailee's  fault.* 
So  by  contract  the  bailee  may  be  obliged  to  take  spec- 
ial care  of  the  property,-'*  as  in  an  Indiana  case  where  an 
agricultural  societv  inviting  exhibitors  at  its  fair  adver- 


1  Browne  Carr.  §  11. 

2  r.rowno  Ciirr.  30 ;  Story  Bail.  •1'?;  Ames 
V.  Holikn,  17  Karl),  ni,-);  Kettle,  r.  Brom- 
sall,  Willos,  IIM;  I'arkcr  f.  Tiffany,  ,^2 
Ul.  28(;;  Ucniickt'.  Atkinson,  11  X.  II.  25G; 
35  Am.  Deo.  493 ;  llarrinfiton  v.  Snyder,  3 
liarb.  380 ;  Vaughan  r.  Webster,  5  Uarr. 
(Del.)  25G. 

■i  nobinson  v.  Uunmore,2  Bos.  &  P.  411',. 
In  Copgs  I .  Bernard,  it  was  considered,  ■ 
notwithstanding  Lord  Coke's  opinion  to 
the  contrary  in  Sonthcole's  case.  4  Rep. 
84,  tliat  in  a  gratuitous  bailment,  the 
promise  of  the  defendant  to  lav  the  goods 

30 


down  safeh/  introdnccd  a  special  teitn 
into  his  contract  which  increased  his 
liability. 

4  Field  r.  Brackett,  Bfi  Me.  121 ;  Mc- 
Kvers  r.  Tlio  Sangamon,  22  Mo.  Ifj"; 
Singleton  r.  Carroll,  5  J.  J.  Marsh.  627; 
22  Am.  Dec.  95;  Young  v.  Bmces,  5  Litt. 
324 ;  Heading  r.  Menkliara,  1  M.  &  H.  234; 
Ilyland  v.  Paul,  33  Barb.  241 ;  Seevors  v. 
Gabcl,  G2  N.  W.  llep.  GfiU  (la.)  See  Har- 
vey v.  Murray,  13G  Mass.  377;  Bellows ». 
Denison,  9  N.  II.  293. 

8  Sate  Deposit  Co.  v.  Pollock,  85  I'a.  St 
.TOl;27Am.  Uep.  6G0. 


\ 


CH.  iirj 


THE   GENERAL    PltlNCIPLES. 


§13 


\ 


ti&6u  tnat  it  would  keep  an  efficient  police  force  on  the 
grotiuds  day  and  night  to  take  care  of  articles  exhibited. 
The  plaintiff  sent  a  gun  to  exhibit,  which  was  stolen 
from  the  building  where  there  was  no  guard  kept,  as 
promised.  The  association  was  held  liable  for  the  loss.^ 
Where  a  bailee  agreed  to  finish  A's  chattel  in  preference 
to  all  others,  but  went  to  work  on  B's  before  he  had 
completed  A's,  and  his  factory  and  A's  property  were  in 
the  meantime  burned,  it  was  held  that  he  was  liable 
though  the  fire  was  not  due  to  any  negligence  on  his 
part.-  Where  A  borrowed  government  bonds  from  B  to 
use  as  collateral  security  for  loans,  promising  to  "re- 
turn or  account  for  the  bonds,"  it  was  held,  that  A  was 
liable  to  B,  notwithstanding  the  bondy  were  stolen 
without  his  fault.^  In  a  Massachusetts  case  a  creditor 
received  of  a  debtor  a  safe,  and  agreed  in  writing 
to  deliver  it  to  the  debtor,  "or  its  equivalent  in 
money,  on  payment  of  a  certain  note."  The  debtor 
paid  the  note  and  demanded  the  safe,  but  it  had 
been  destroyed  by  fire  without  the  creditor's  fault 
The  latter  was  held  liable.*  Where  the  agreement  was 
that  the  goods  pledged  should  be  stored  in  a  certain 


1  Vifto  Agrirnltnral  Soe.  v.  Brnmflel, 
102  Iml.  146;  52  Am.  Rt-p.  687;  1  N.  E. 
Kcp.  382. 

2  Pattison  V.  Wallace,  1  Stew.  48. 

3  AiTlier  V.  Walker,  38  Ind.  472. 

4  Brake  v.  White,  117  Mass.  10.  "This," 
said  the  Court,  "is  a  case  of  deposit  ot 
personal  property  by  a  debtor  in  the 
liands  of  a  creditor  as  collateral  security 
for  the  debt.  If  it  presented  merely  the 
ordinary  incidents  of  a  pledge,  it  would 
be  manifest  that  the  action  could  not  bo 
maintained.  The  destruction  of  the 
property  is  conceded  to  have  been  acci- 
dental, without  fault  or  neglect  ot  duty  on 
the  part  of  the  defendants.  But  the  claim 
ot  the  plaintiff  is,  that  the  transaction 
differs  widely  from  an  ordinary  pledge, 
and  he  contends  that  by  the  terms  ot  a 


written  contract  the  di'fi'ndants  have 
taken  upon  themselves  a  special  liability 
ot  a  much  more  extensive  character.  If, 
in  the  common  case  of  a  pledge,  the 
common- law  contract  were  reduced  to 
writing,  it  woTild  contain,  among  other 
things,  a  stipulation  that  the  pledgee 
should  not  be  responsible  for  the  loss  of 
the  property,  unless  some  want  of  rea- 
sonable and  ordinary  cure  on  his  part 
were  the  cause  ot  such  loss.  In  the 
present  case  the  parties  have  reduced 
their  contract  to  writing,  and  have  omit- 
ted to  attach  to  the  defendants'  liability 
for  the  property  any  limitation  what- 
ever. On  the  contrary,  their  express 
promise  is  to  do  one  or  the  other  of  two 
things:  either  to  return  the  properly 
specifically,  or  to  pay  inr  it  in  money. 

:ji 


4 


§13 


TIIK  OKNKUAL   PRINCIPLES. 


[part  I 


warehouse  and  an  ageut  of  the  pledj^^ee  removed  them 
to  another  place,  where  they  were  injured,  it  was  held 
that  the  pU^dgee  was  absolutely  liable  without  regard 
to  negligence.*  So  a  warehouseman  may  enlarge  his 
liabiirtv^bv  agreeing  to  store  goods  in  tire  proof  build- 


ings.- 


lu  the  civil  law  what  was  called  a  valued  loan,  viz., 
where  the  goods  lent  are  stated  to  be  worth  a  certain 
price,  made  the  borrower  liable  at  all  events  to  restore 
either  them  or  the  value  so  fixed.  But  the  common  law 
rule  is  different,  viz.,  that  the  placing  of  a  value  or 
price  upon  the  articles  loaned  does  not  enhance  the  ob- 
ligation of  the  borrower,  but  serves  merely  to  fix  the 
amount  of  recovery  in  case  of  a  loss  for  which  the  bailee 
is  responsible.^ 

On  the  other  hand,  an  ordinary  bailee  may  stipulate 
for  immunity  from  liability  in  case  of  damage  or  loss 
to  the  articles  entrusted  to  him  even  though  he  may 
have  been  somewhat  negligent  in  the  matter.  But  no 
stipulation  of  the  kind  can  do  away  with  a  bailee's  lia- 


rhero  can  be  no  ilonbt  that  if  a  creditor 
sees  lit  to  accept  a  deposit  of  security 
npon  such  terms,  and  to  place  himself 
in  the  position  of  an  insurer  of  its  safety, 
he  can  legally  do  so.  It  is  not  dilllcult  to 
suppose  a  case  in  which  the  parties 
might  find  it  convenient  that  the  busi- 
ness of  guarding  ntrainst  the  risk  of  (ire 
or  other  accident  should  he  attemled  to 
by  the  depositary,  liut  however  that 
may  be,  the  proper  interpret.ition  of  the 
contract  is  to  be  determined  by  the  gen- 
eral rules  of  construction  recognized  by 
the  law;  and  if  the  parties  have  improvi- 
dmtly  made  their  contract  more  onerous 
than  they  expected,  the  difficulty  cannot 
be  removed  by  a  violation  of  those  rules." 

1  St.  Losky  f.  Davidson,  6  Cal.  644. 

2  Uatchet't  r.  Uibsou,  13  Ala.  587;  Gib- 
son ti.  Hatchett,  24  Ala.  201;  Vincent  c. 
Bather,  .SI  Tex.  77;  98 Am.  Dec.  51G;  Jones 
V.  Hatchett,  14  Ala.  74.3.  Where  the 
owner  of  a  warehonse  in  which  plaintiff 

32 


was  about  to  store  bulbs  staled  thiit  it 
was  free  from  frost,  and  that  there  was 
no  danger  of  the  bulbs  freezing,  this 
was  held  not  enough  to  give  plaintiff  a 
right  of  action  as  on  a  warranty,  the 
bulbs  having  frozen  in  the  warehouse: 
Hallock  r.  Mallett,  65  N.  Y.  S.  C.  '205. 

3  Kdw.  Hail.  174;  Sir  William  Jones 
(Bail.  71)  says:  "If  William  says  to  Paul' 
alternatively,  'I  promise  on  my  return  to 
Oxford,  either  to  restore  your  horse  or 
to  pay  you  thirty  guineas,  be  must  in  all 
events  perform  one  part  of  this  disjunc- 
tive obligation;'  but  if  I'anl  had  only 
said,  'the  horse  which  1  lend  jou  for  this 
journey  is  fairly  worth  thirty  guineas,' 
no  more  could  be  implied  from  those 
words  than  a  design  of  preventing  any 
future  dilliculty  about  the  price,  if  the 
horse  should  be  killed  or  injured  through 
an  omission  of  that  extraordinary  dili- 
gence which  the  nature  of  tlie  contrast 
required." 


% 


t 


CI 

b 
n 

cc 


CII.  III.] 


THE    GENERAL    PRINCIPLES. 


§14 


rt 


i 


bility  iu  case  the  loss  arises  through  his  fraud,^  and 
no  contract  between  the  parties  Avill  be  binding  if  it  is 
contrary  to  public  policy,  as  contracts  limiting  the  lia- 
bility of  common  carriers  for  negligence  are  held  to  be.- 
The  liability  of  a  pledgee  is  restricted  by  an  agreement 
between  the  parties  that  tb?  pledgor  and  not  the 
pledgee  shall  collect  the  securities  pledged.' 

§  14.  Modification  of  Liability  by  Acts  or  Con- 
duct of  Bailor. —  Contributory  negligence  on  the  part 
of  the  bailor  may  bar  his  remedy.  Illustrations  of  this 
principle  are  frequent  in  the  succeeding  chapters  upon 
Carriers  and  Innkeepers;^  but  not  a  few  may  be  dis- 
covered in  the  adjudged  cases  against  ordinary  bailees. 
Thus  where  a  man  hung  his  overcoat  on  a  peg  near  the 
door  instead  of  giving  it  into  the  custody  of  one  of  the 
defendant's  servants  whose  business  he  knew  was  to 
take  charge  of  customers'  garments  and  it  was  stolen, 
it  was  held  that  the  plaintiff  himself  was  to  blame  and 
not  the  bailee,'^  and  the  same  conclusion  was  reached 
where  a  person  sent  by  another  a  check  in  a  sealed  en- 
velope which  check  he  had  indorsed  in  blank." 

And  in  the  selection  of  his  bailee  a  man  is  required 
to  exercise  a  certain  amount  of  care.  If  one  should 
entrust  his  watch  to  an  idiot  or  a  young  child  no 
amount  of  negligence  on  their  part  would  give  him  a 
remedy  against  them;  he  would  have  to  bear  the  conse- 
quences of  his  own  stupiditj-.^  So  if  a  bailor  knows 
not  only  the  general  character  and  habits  of  the  bailee 


s , 


1  story  Bail.  §  ,T.' :  I.iincastiT  Co.  IJank  v. 
Smith,  G2  Pa.  St.  47;  Smith  v.  Library 
Board,  59  N.  E.  Kep.  !)T!)  (Miuu.) 

2  See  post  §  i;i7. 

3  I^e  r.  Baldwin,  10  Ga.  208. 

*  See  post  Cap.  VIII  et  seq.      See  also 
Brandonr.  Gulf  City  Mfg.  Co.,51Ti'x.  121. 
s  Trowbridge  v.  Schreivcr,  6  Daly  11. 

4 


6  Hayps  V.  Wolls,  23  Cal.  1S5;  S.S  Am. 
Doc.  80. 

7  "Although  the  character  of  the  in- 
dividual depositary  can  not  bo  properly 
the  subject  of  judicial  invostifration, 
cases  do  sometimes  occur  in  which  this 
seems  to  be  necessary,  in  which  hi$ 
character  in   fact   affects  his    liability. 

33 


*■, .  'i 


i.% 


§15 


THE  OENEUAIi    I'UINCIPLES. 


[part  I. 


or  depositary,  but  the  place  where  and  the  manner  m 
which  the  goods  deposited  are  to  be  kept  by  him,  he 
must  be  presumed  to  asseut  in  advance  that  his  goods 
shall  be  thus  treated;  and  if  under  such  circumstances 
they  are  damaged  or  lost,  it  is  by  reason  of  his  own  fault 
or  folly.  He  should  not  have  intrusted  them  with  such 
a  depositary-  to  be  kept  in  such  a  manner  and  place.' 
So  if  the  lender  knows  the  borrower's  character  and 
how  the  thing  loaned  is  to  be  used,  it  is  no  more  than  a 
fair  inference  that  the  lender  agreed  to  rcMiuire  no 
greater  care  than  the  borrower  is  capable  of  bestow- 
ing.- 

§  15.  The  Bailee's  Special  Property  in  the  Chat- 
tel.—He  who  has  the  title  to  a.  chattel  has  what  is 
known  in  the  law  as  the  general  property.  The  bailee 
not  having  the  title,  nevertheless  has  in  addition  to 
the  possession  of  the  chattel  a  special,  limited  or  quali- 
fied property  in  it  which  gives  him  a  right  of  action 
against  any  one,  whether  the  bailor  or  a  stranger,  in- 
terfering with  his  possession  or  doing  damage  to  the 
bailed  article.^     He  is,  in  a  certain  sense  the  agent  of 


oil 

til 
n| 
h 
uj 

til 
1>1 

J1 

SI 

j[ 

a 
n 
t 


A  man  who  knowingly  entrnsts  his 
diamonds  or  other  valnablc  property 
with  a  person  of  weali  and  inlinn 
Indgment,  or  lo  a  child  wanting  ex- 
perieneo  and  disi-retiou,  or  to  one  ot 
dissipated  habits  or  cra/y  intellect, 
through  whoso  inllrmitics  the  poods  are 
lost  or  destroyed,  it  is  fair  to  presume 
the  depositor  intended  to  take  the  re- 
ponsibility  of  nil  the  chances."— Kdw. 
Bail.  73,  citing  The  ■\Villiara,6  Uob.  S\&. 

1  Kuowles  f.  R.  R.  Co.,  m  Jfc.  5.5;  Gl 
Am.  Dec.  2.14;  Hayes  r.  AVells,23  Cal.  185; 
K3  Am.  Dec.  80.  Sec  Conway  Bank  v. 
An;crican  Express  Co.,  8  Allen,  512; 
Mooors  f.  Larry,  15  Gray,  451 ;  Ilrown  v. 
Hitchcock,  28  Vt.  452;  Hughes  r.  Boyer, 
9  Watts,  556. 

2  Edw.  liail.  141. 

34 


3  llnrdiet  v.  MuiTay,  3  Vt.  302;  21  Am. 
Dec.  688;  White  f.  Unscom,  28  Vt.  2t>8; 
Hare  v.  TuUer,  7  Ala.  717;  Cox  r.  Easley, 
11  Ala.  3r,2 ;  Hopper  r.  Miller,  76  N.  C.  402 ; 
Eaton  V.  I^ynde,  1.5  Mass.  242 ;  Shaw  t'. 
Kaler,  106  Mass.  448 ;  Bradley  v.  Spoflonl, 
23  N.  H.  414;  55  Am.  Dec.  205;  Adams  v. 
O'Connor,  100  >iass.  515;  1  Am.  Rep.  137; 
Murray  f.  Warner,  65  N.  H.  546 ;  20  Am. 
Rep.  227;  McConnellr.  Maxwell,. SBlackf. 
419 ;  26  Am.  Deo.  428 ;  Engel  v.  Scott,  61 
N.  W.  Rep.  825  (Minn.) ;  Shaw  v.  Kaler, 
106 Mass.  448.  the  court  saying:  "It  has 
been  settled  by  a  long  course  of  de- 
cisions, that  possession  is  a  snfllciont 
title  to  support  an  action  of  trespass  or 
trover  against  a  party  having  no  right. 
A  mere  WTongdoer  is  not  permitted  to 
question  the  title  of  a  person  in  the  ac- 


CII.  III.] 


TIIK    GENKUAL    PKINCIVLES. 


§15 


.'! 


\ 


the  bailoi",  ehargCHl  with  tho  execution  of  a  trust  con- 
netted  with  tlie  custody  of  the  propei^ty  <lelivered  to 
liini;  and  In  this  capacity  lie  is  clothed  with  the  rij^hts 
necessary  to  the  fulfillment  of  'i.s  dut'es  under  the 
trust.'  In  tho  early  case  of  Armoni  r.  Dihuuiriv,'  the 
plaintiff  was  a  chimney-sweeper's  boy^  and  found  a 
jewel,  which  he  carried  to  the  defendant,  a  jeweler.  Tho 
stones  were  taken  out  by  tho  jeweler;  and  it  was  ad- 
judged that  the  plaintiff  was  lawfully  in  possession 
against  all  the  world,  except  the  owner,  and  might 
maintain  trover.  Tlie  principle  there  established,  viz., 
that  the  tinder  of  a  chattel,  though  he  does  not  acquire 
by  such  finding  an  absolute  property  or  ownership,  yet 
has  such  a  property  as  will  enable  him  to  keep  it 
against  all  but  the  rightful  owner  and  consequently 
may  maintain  an  action  for  it,''  applies  to  all  classes  of 
bailees.^ 


tual  possession  (ind  cnstoily  of  tho  goods, 
whosn  possession  ho  has  disturbed: 
Armory  i'.  Delaniirie,  1  Strange,  505; 
Rogers  r.  Arnold,  12  Wend.  ,S0,:!7;  Win- 
ship  r.  Neale,  10  Gray,  .SS2;  Itnrko  v. 
Savage,  13  Allen,  40<^.  In  tho  action  of 
trespass,  as  possession  is  prima  facie 
evidence  of  right,  so  a  niero  stranger 
cannot  deprive  the  party  of  that  posses- 
sion without  showing  some  authority  or 
riglit  from  the  tnic  owner  to  justify  the 
taking.  This  sound  and  incontrovertible 
principle  has  been  extended  to  trover, 
and  it  ecjually  applies  to  replevin." 

1  Edw.  l$aii.  34. 

2  I. Strange, >W.5. 

•)  lirandon  1'.  Hnnlsville  Hank,  1  Stew. 
320;  18  Am.  Dec.  4S;  Armory  r.  Dela- 
niirie, 1  Strange,  SO.'i;  1  Smith's  Ix-ad. 
Gas.  G3G;  McLaughlin  v.  Waitc,  9  Cow. 
670;  5  Wend.  404 ;  21  Am.  Dec.  2.i2 ;  Pink- 
ham  t'.  Gear,  3  N.  II.  484;  I'oole  v.  Sy- 
monds,  1  N.  11.  290;  8  Am.  Dec.  71 ;  Clark 
r.  Maloney,  3  Harr.  (Del.)  Ci;  Magee  r. 
Scott,  9  Cush.  148 ;  55  Am.  Dec.  40 ;  Tatnm 
V.  Sharj'lcss,  6  I'hila.  18;  Bridges  r. 
Hawkesworth,  15  Jur.  1027.  A  finder  may 
sae  a  gratuitous  bailee  with  whom  he 


has  deposited  the  article  for  a  negligent 
loss:  Tancil  r.  Seaton,  28  Gratt.  601;  26 
Am.  Uep.  380. 

4  Montgomery  Gas  Light  Co.  v.  K.  Co., 
80  Ala.  372 ;  Katon  v.  I.yndc,  l,!  Mass.  242 ; 
Harrington  v.  King,  121  Mass.  200;  El- 
dridgc  f.  Adams,  64  Ilarb.  417;  Thayer  r. 
Hutchinson,  13  Vt.  504;  37  Am.  Dec.  607; 
I'oole  V.  Symonds,  1  N.  H.  200;  8  Am.  Dec. 
71;  Hyde  r.  Noble,  13  N.  H.  404;  .S8  Am. 
Dee.  508;  Miller  r.  Adsit,  16  Wend.  .l.-iS; 
(iiles  V.  Grover,  0  IJligh,  277,  452;  Carson 
V.  I'rater.  0  Cold.  565;  Jones  r.  McNeil, 
2  IJail.  460;  Neff  r.  Thompson,  8  Barb. 
213.  Sec  Ludden  r.  Leavitt,  9  Mass.  104  ; 
0  Am.  Dec.  45 ;  Oucalt  r.  Durliug,  25  N.  .1. 
(L.)  443;  Cox.  r.  Easley,  U  Ala.  ,362; 
Hare  r.  l-^iUcr,  7  Ala.  717;  White  f. 
l{asrom,22  Vt.  280;  Bliss  r.  Schaub,  48 
Barb.  S.TO;  Hopper  r.  Miller,  76  N.  C.  402; 
McGill  r.  Monette,  37  Ala.  40;  Woodman 
r.  Nottingham,  40  N.  H.  .S87;  6  Am.  Rep. 
520 ;  Rindgo  f.  Inhabitants,  11  Gray,  158; 
Philips  r.  Harriss,  3J.  J.  Marsh.  122;  19 
Am.  Dec.  IGO;  Little  r.  Fossett,  34  Me. 
545;  56  Am.  Dec.  671 ;  Drake  r.  Ucdington, 
0  N.  H.  243;  Brewster  v.  Warner,  136 
Mass.  57;  40  Am.  Rep.  5. 

35 


i;l  I 


ri 


§16 


THE   GENERAL   PRINCIPLES. 


[PAET  I. 


If  the  owner  has  bailwl  it  for  a  specified  time,  the 
owner  cannot  during  that  time  maintain  trespass  for 
it;  for,  until  the  bailment  is  at  an  end,  he  has  parted 
both  with  the  possession  and  right  of  possession.*  But 
at  the  expiration  of  the  time  for  which  the  thing  has 
been  bailed  or  where  the  bailment  is  at  his  will  the 
owner  may  sue;^  and  so  also  if  the  bailee  violates  the 
ternis  of  the  bailment  by  his  use  of  the  chattel,^  for  he 
has  then  put  an  end  to  the  bailment.  A  recoveiy  by 
one  bars  the  right  in  the  other.* 

§  IG.  Xegliffencc  Iiiimaterial  in  Certain  Cases.— 

Where  the  bailment  is  in  its  inception  tortious  the 
question  of  negligence  is  immaterial,  for  the  owner  may 
recover  his  property  or  its  value,  as  he  may  riect,  and  it 
is  no  defense  that  it  has-been  destroyed  or  lost  through 
no  fault  of  the  wrongdoer.^  The  strongest  case  of  this 
kind  would  be  that  of  a  thief  or  trespasser;  but  the  rule 
is  not  confined  to  cases  where  the  defendant  has  taken 
possession  of  the  owner's  property  without  his  consent, 
for  everj^  direct  act  of  authority,  amounting  to  an  asser- 
tion of  title,  or  denial  of  the  bailor's  right,  every  breach 
of  the  express  or  implie<l  trust  on  which  it  was  receivetl, 
and  every  abuse  of  his  possession,  has  been  repeatedly 


i 


1  Belli'.  Mnnahan,  Dud.  (S.  0.)  ,38;  31 
Aw.  Dec.  548;  McFarland  r.  Smith,  1 
Miss.  172 ;  Lunt  r.  Brown,  13  Mc.  2.% ;  La- 
costo  r.  ripkin,  13  Smedes  &  M.  5Sn; 
Clark  V.  Carlton,  1  X.  H.  110;  CorllcM  f. 
Coryell,  4  Wash.  C.  C.  371 ;  Lewis  i:  Car- 
sow,  16  Pa.  St.  31;  Hnme  v  Tufts,  6 
Blackf.  1,% ;  Wilson  r.  Martin,  40  X.  II. 
88 ;  Pntnam  t>.  Wiley,  8  Johns.  432 ;  5  .\m. 
Dec.  34fi ;  Mnggridge  v.  Eveleth,  9  Met. 
23.3 ;  Swift  f.Moseley,  10  Vt.  208;  33  Am. 
Dec.  197. 

a  Keycsv.  Howe,  18  Vt.  411;  Orscr  v. 
Storms,  9  Cow.  G87;  18  Am.  Doc.  543. 

S  Root  V.  Chandler,  10  M'cnd.  110;  2,". 
Am.  Dec.  B4G ;  Swift  v.  Moseley,  10  Vt. 

36 


208 ;  33  Am.  I>cc.  197 ;  Clarke  f.  I'oozer,  2 
McMnll,  4.34. 

4  now.ird  r.  Farr.  18  X.  n.  457 ;  Sallec  t'. 
Arnold,  32  Mo.  5.;2 ;  82  Am.  Dec.  144 ;  TIm  - 
rinpton  r.  Kinjr,  121  Mass.  2R9;  John- 
son r.  .'.lolyoke,  105  Miiss.  80;  Ches- 
ley  r.  St.  Clair,  1  X.  U.  189;  Bissell  v. 
iInntiugdon,2X.II.  14.3. 

s  Lncas  r.  TmmlniU,  15  Gray,  .306; 
Fisher  v.  Kyle,  27  Mich.  454;  Cullen  v. 
I-oi-d,  39  Iowa,  .302;  Wentworth  v.  Mc- 
Duffcc,  48  X.  n.  402;  Kennedy  v.  Ash- 
croft,  4  Bush,  5.!n;  Collins  r.  Bennett,  46 
X.  Y.  490;  Cothran  t-.  Moore,  1  Ala.  423; 
Warner  v.  Dunnavan,  23  111.  .380;  Spencer 
V.  Morgan,  5  Ind.  146;  Smith  ••.  Stewart, 
5  Ind.  220;  Aider,  r.  Pearson,  3  Gray,  342. 


4 


CII.  III.] 


THE   GENERAL   PRINCIPLES. 


§17 


held  a  conversion  of  the  property,  rendering  the  bailee 
from  that  time  absolutely  responsible  for  it,  and  casting 
upon  him  all  the  risks  that  may  afterwards  attend  the 
property.' 

Where  the  bailee  has  been  guilty  of  an  act  of  conver- 
sion a  re-delivery  of  the  articles  bailed  will  not  protect 
him  from  an  action  for  the  damages  sustained  by  his 
misuse  of  the  property  while  in  his  custody.-  The  ac- 
ceptance of  the  property  on  its  return  in  a  damaged  con- 
dition is  not  a  waiver  of  the  bailor's  right  of  action  for 
the  damages.^ 

§  17.    Bailee's  Property  Liimited  to  the  Trust. 

Though  the  law  gives  the  bailee  an  interest  sullicieut  to 
carry  out  and  accomplish  the  purposes  of  the  contract, 
which  extends  to  the  defense  of  the  property  by  action 
against  any  and  all  persons  who  may  interfere  with  it,^ 
yet  this  does  not  include  the  right  to  bestow  it  or  make 
use  of  it  in  any  way  not  evidently  contemplated  by  the 
parties  to  the  contract  of  bailment,  and  hence  a  bailee 
cannot  sell  the  goods  so  as  to  give  title  to  the  vendee 
uor  lease,  pledge  or  otherAvise  transfer  them  in  contra- 
vcndon  of  the  jiurposo  of  the  bailment  even  to  one  act- 
ing bona  fide  and  without  notice  of  the  bailee's  status,^ 


1  Do  ToUi'iKTC  v.  FulliT,  1  Mill  Const. 
117;  12  Am.  Doc.  filO;  Duncan  r.  U.  R.  Co., 
2  Rich.  21.S;  IMrncr  r.  rimor,  2  Xott  A 
McC.  4S0;  Lano  r.  Cameron,  .S8  Wis.  6(W; 
Spciiccrr.  rilcher,  8  Lcipli,  5(;5;  IIooUs 
r.  Smith,  18  Ala.  .S3S;  Mills  r.  Asho,  10 
Tex.  295;  Harrington  v.  Snyder,  3  liarb. 
380 ;  Mayor  r.  Howard,  6  C.a.  21,1;  Horse- 
ly  f.  Branch,  1  Humph.  I!t0;  Stow.irtr 
Davis,  .11  Ark.  618 ;  2a  Am.  Uep.  C7(> ;  Green 
r.  Hollingsworth,  B  Dana,  173;  ,30  Am. 
Dec.  GS8. 

S  Reynolds  r.  Shnlcr.  .I  Cow.  .323. 

3  Murray  r.  ISurling,  10  John.  172 ;  Hay- 
lies  f.  Fisher,  7  Bing.  153 ;  Gibbs  f.  Chase, 


10  Mass.  125;  Rownian  i:  Tcall,  2:!  Wend. 
.300;  35  Am.  Dec.  r)02. 

*  See  ante  §  15. 

s  Story  Hail.  §  102;  Kmerson  v.  Fisk, 
CCircci. 1.200;  19  Am.  Doc.  200;  Crimp  c. 
Mitchell,  .34  Miss.  440;  Calhoun  v.  Thomp- 
son, 50  Al.a.  100;  28  Am.  Rop.  754 ;  Metlliu 
r.  Wilkcrson,  81  Ala.  147;  Whitlock  v. 
Heai-d,  13  Ala.  770;  48  Am.  Dec.  73;  Bry- 
ant t'.  Wardwcll,  2  Kx.  479;  Marner  f. 
Banks,  10  Week.  Rop.  02;  .'^wift  r.  Mosr- 
ley,  10  Vt.  208;  ,33  Am.  Dec.  197;  Johnson 
f.  Wiley.  40  N.  H.  75;  Dunham  r.  IxiC,  24 
Vt.  4,32;  Sear!];ont  r.  Giles,  8  N.  H.  325; 
Crocker  f.  Gnllifer,  44  Me.  491;  69  Am. 
Deo.  108.    A  bailee  has  no  right  to  lend 

37 


§19 


THE   GENERAL   PRINCIPLES. 


[part  I. 


unless  the  bailor  has  acted  in  such  a  way  as  to  lead  the 
purchaser  to  believe  the  former  was  the  owner.' 

§  18.  The  Trust  Duties  of  the  Bailee.— The  bailee 
has  agreed  in  accepting  the  bailed  chattel  to  (a)  receive 
it  as  his,  the  bailor's,  to  (b)  obey  the  instructions  of  the 
bailor,  to  (c)  use  it  in  accordance  with  the  terms  of  the 
bailment  contract,  and  (d)  to  redeliver  it  to  the  bailor. 


§  19.    (a)  To  Hold  of  the  Bailor Uolding   the 

I)roperly  by  contract  with  the  bailor,  the  bailee  's  not 
permitted  to  dispute  the  bailor's  title,  whether  the  bail- 
ment be  a  gratuitous  one-  or  one  for  mutual  benefit.'' 
But  it  has  been  held  that  he  may  show  that  the  bailor 
obtained  possession  of  the  goods  fraudulently,  tor- 
tiously  or  feloniously.^  He  does  not  stand,  however,  in 
any  better  conditon  than  the  bailor;  since  the  true 
owner  may  follow  aud  take  the  property  in  whose  hands 
soever  it  may  be  found.  But  until  a  demand  is  made 
or  notice  given,  the  bailee  will  be  protected  in  the  act  of 
restoring  the  goods  to  the  person  from  whom  he  re- 
ceived them. 


the  property,  or  impose  a  lion  npoii  it  as 
against  tho  on-iicr.     Wallicr  r.  Wilkin- 

"n,  35  Ala.  TOS;  7G  Am.  Dec.  .S15;  Small 
i:  Uobinsou,  09  Mc.  4'J.5;  ill  Am.  Ucp.  799. 
1  Smith  V.  Clews,  105  X.  Y.  28.1 ;  11  N.  E. 
Rep.  C:i2;  Sinclair  v.  Pearson,  7  N.  U. 
■219;  KiUiiell  r.  Vi.j.'^dar,  1  Ulackf.  .W);  l> 
Am.  Dec.  2,.>;  C'hisni  r.  Woods,  Uard. 
531;.SAm.  Dec.  7in;  Russell  v.  Favier, 
18  Iji.  685;  3C  Am.  Dec.  Gn2.  One  buying 
wheat  from  a  warchonseman  who  has 
no  title  buys  at  his  peril.  The  true 
owner  may  maintain  trover,  ami  this, 
without  ft  demand.  Vclsiau  i-.  Ix3wis,  15 
Or.539;3Am.gt.Rep.l84ilGPac.Rep.031. 

»  Edwards  on  bailments,  §  7.);  Pui- 
Ham  ti.  nnrllngame,  81  Mo.  Ill;  rn  Am. 
Uep.  229;  Simpson  r.  Wrenn,  Su  111.  2''- 

38 


W  Am.  Dec.  nil;  Xndil  ?-.  Rlontanyne,  .R8 
Wis.  511 ;  20  Am.  Hop.  25 ;  Lain  v.  Uaithcr, 
72N.C.2.S4. 

3  Caurice  v.  Spanton,  7  Man.  &  G.  OO.S; 
Ropers  r.  Weir,  ;i4  N.  Y.  463;  Maxwell  v. 
Houston,  G7  N.  C.  ,S05;  Peebles  v.  Farrar, 
7.S  N.  C.  ,S42;  Foltz  r.  Stevens,  54  111.  180; 
Kstes  f.  Boothe,  20  Ark.  68.S;  Ball  v. 
Mne>,4SX.  Y.  G;  8  Am.  Uep.  511;  Gos- 
ling )•.  Itirnie,  7  IJing.  ,1.«t;  IJoll  v.  Griffin, 
10  Iling.  24G;  Ilolbrook  r.  Wright,  24 
M'end.  1C9;  .S5  Am.  Dec.  GO". 

4  King  I'.  Richards,  6  Whart.  418;  37 
Am.  Dec.  420;  Uumphrey  r.  Reed,  « 
Whart.  443:  Floyd  r.  Uovard,  G  Watts  & 
S.  70;  Hostler,  r.  Skull,  Tayl,  1,52;  1  Am. 
Dec,  5H8. 


CII.  III.] 


THE   GENERAL   PRINCIPLES. 


§20 


§  20,  (b)  To  Follow  His  Instructions. — Any  direc- 
tions which  a  bailee  receives  from  the  bailor  must 
be  followed  strictly,  a  deviation  from  them  rendering 
him  liable  absolutely.^  Thus,  where  a  person  puts 
grain  in  a  warehouse  for  the  purpose  of  storage,  and 
(he  warehouseman  converts  the  grain  to  his  own  use 
by  manufacturing  it  into  flour,  and  selling  the  flour, 
the  owner  of  the  grain  may  waive  the  tort,  and  recover 
from  the  warehouseman  the  sum  he  received  for  the 
flour,  in  an  action  for  money  had  and  received.-  Where 
one  hires  a  horse  and  buggy  to  go  to  a  certain  town 
and  return  and  agrees  to  put  the  horse  in  a  barn  while 
at  such  town,  but  fails  to  do  so,  and  the  horse  and  buggj^ 
are  stolen,  he  is  liable  to  the  owner  for  their  value,'' 
Where  the  hirer  of  mules  substitutes  some  one  else  as 
driver  instead  of  him  Avho  is  placed  in  personal  charge 
by  the  owner,  he  is  guilty  of  conversion  and  liable  for 
injuries  they  receive,  whether  negligently  or  not,*  In 
a  Massachusetts  case^  plaintifl',  on  going  abroad,  re- 
<iuested  the  defendant  to  buy  a  government  bond  and 
keep  it  for  him.  He  did  so,  though  he  was  to  receive 
nothing  for  his  senices.  After  keeping  it  a  year,  with- 
out being  requested,  he  sent  it  by  mail  to  the  plaintiff's 
wife,  and  it  was  lost.  It  was  held  that  he  was  liable, 
without  regard  to  the  question  of  negligence.  Said  the 
court:  "The  substance  of  the  defendant's  contract  and 
duty  was  to  keep  the  deposit  with  reasonable  care  and 
to  restore  it  when  properly  called  upon.  We  do  not 
interpret  this  contract  as  restricting  him  to  one  place 
or  uniform  mode  of  keeping.     All  that  could  reason- 


1  Krtw.  Hiiil.  73;  Parker  v.  Lombanl, 
100  Mass.  405;  Coniptou  r.  Shaw,  1  Hun, 
441;nowcn  V.  Morlan.  TH  111.  ir,2;Kow 
ing  V.  Manley,  49  N.  V.  192;  10  Am.  Ucp> 
346,  See  Winklcy  v.  Foye,  33  N.  II.  171; 
60  Am.  Dec.  715. 


2  Ivos  r.  Hartley,  61  111.  520. 

3  Line  r.  Mills,  39  N.  E.  Uep.  870  (Ind.). 

4  Kellar  r.  Garth,  45  Mo.  (App.)  332. 

8  Jeukins  r.  Bacon,  111  Mass.  375;    IS 
Am.  Rep.  3.33. 

89 


m 


i'\ 


§20 


THE   GENERAL  PRINCIPLES. 


[part  I. 


ably  be  expected  of  him  was  that  he  should  keep  it  with 
his  OAvn  papers  and  in  the  same  manner  and  with  the 
same  degree  of  care  as  a  man  of  ordinaiy  prudence 
would  exercise  in  the  custody  of  papers  of  his  own  of 
like  character.  Circumstances  might  occur  which 
would  render  it  reasonable  and  proper  that  he  should 
change  the  place  of  deposit.  If  his  own  place  of  busi- 
ness should  be  destroyed  by  fire,  or  if,  from  change  of 
residence  or  temporary'  absence  from  the  country-,  or 
for  other  sufficient  reason,  it  should  become  inconven- 
ient or  unsafe  that  he  should  retain  the  manual  posses- 
sion of  the  bond,  he  would  undoubtedly  be  at  liberty 
to  deposit  it  in  any  other  place  or  mode  in  Avhich  he 
with  reasonable  prudence  might  deposit  his  own  prop- 
erty of  the  like  description.  But,  as  between  the  orig- 
inal depositor  and  himself,  he  would  continue  to  be  the 
lawful  and  responsible  custodian,  and  bound  to  practice 
that  degree  of  care  which  the  law  required  of  gratuitous 
bailees.  The  complaint  against  him  is,  not  that  he 
kept  it  negligently  or  lost  it  by  gross  carelessness,  but 
that  he  intentionally  disposed  of  it  in  a  manner  not  au- 
thorized by  the  terms  of  the  trust.  For  the  purposes 
of  this  case,  it  is  wholly  immaterial  whether  the  post- 
office  furnishes  a  reasonably  safe  mode  of  transmission 
in  the  case  of  valuable  papers  of  such  a  description  or 
not.  The  question  of  due  negligence  or  gross  neglect, 
in  our  opinion,  is  not  raised  by  the  bill  of  exceptions." 
So  in  Tennessee,  T  gratuitously  undertook  to  receive 
fifteen  hundred  dollars  for  C  at  N,  and  to  deliver  it  to 
him  at  W  where  they  both  resided.  After  drawing  the 
money  T  went  to  a  public  fair,  where  he  met  E,  a 
townsman,  who  was  going  home  before  he  was.  '  T, 
stepping  a  little  aside  from  the  crowd,  gave  E  the' 
money  to  carry  to  (\  On  his  way  home,^  while  in  a 
crowded  car,  E  had  his  pocket  picked  of  the  money.  It 
40 


CH.  III.] 


THE   GENERAL   PRIXCIPLES. 


§20 


was  held  that  T  was  liable  for  the  loss,  as  he  had  vio- 
lated his  trust  and  was  guilty  of  a  conversion  of  the 
property.^  In  an  English  case,^  the  defendant  con- 
tracted to  warehouse  certain  goods  at  a  particular 
place,  but  he  warehoused  a  part  of  them  at  another 
place,  whe^e,  without  negligence  on  his  part,  they 
were  destroyed.  The  plaintiff  had  insured  the  goods, 
giving  the  place  where  the  defendant  contracted  to 
warv-uouse  them  as  the  place  where  they  were  de- 
posited, and  in  consequence  lost  the  benefit  of  the 
insurance.  It  was  held  that  the  defendant,  by 
his  breach  of  contract,  had  rendered  himself  lia- 
ble for  the  loss  of  the  goods.  Grove,  J.,  said, 
among  other  things  :  "I  think  the  plaintiff  is 
entitled  to  recover.  It  seems  to  me  impossible  to 
get  over  this  point — that  by  the  finding  of  the  jury  there 
has  been  a  breach  of  contract.  The  defendant  was  in- 
trusted with  the  goods  for  a  particular  purpose,  and 
to  keep  them  in  a  particular  place,  lie  took  them  to 
another,  and  must  be  responsible  for  what  took  place 
there.  *  *  *  I  do  not  give  any  opinion  whether 
what  was  done  here  amounted  to  a  conversion,  but  I 
base  my  judgment  on  the  fact  that  the  defendant  broke 
his  contract  by  dealing  with  the  subject-matter  in  a 
manner  different  from  that  in  which  he  contracted  to 
deal  with  it."  Lindley,  J.,  added:  "It  is  further  said 
that  the  defendant  was  responsible  only  for  want  of 
reasonable  care;  but  is  that  so,  when  he  has  departed 
from  his  authority  in  dealing  with  the  goods?"  This 
case  is  distinguished  in  a  Connecticut  one''  where  the 
facts  were  as  follows:  B  stored  a  hearse  at  A's  livery 
stable.  The  hearse  was  insured,  and  one  of  the  condi- 
tions of  such  insurance  was  that  it  should  be  kept  at 


'10 


•».,  >" 


1  Colyar  v.  Taylor,  1  Cold.  372. 

S  LiUey  r.  Donbleday,  7  Q.  B.  Div.  510. 


3  Bradley  v,  CunniriKliain,  23  Atl.  Bep. 
9,S2. 

41 


§21 


TIIE   GENERAL  PRINCIPLES. 


[part  I' 


this  stable.  A  knew  nothing  of  the  insurance,  nor  did 
he  contract  to  lieep  the  hearse  in  any  particuhir  place. 
A  few  months  after  the  hearse  was  left  in  his  charge, 
A,  without  informing  B,  placed  the  hearse  in  another 
stable,  where  it  was  destroyed  by  fire.  It  was  not 
claimed  that  its  removal  had  increased  the  chances  of 
loss  or  damage.  The  court  held  that  A  was  guilty  of 
no  negligence  for  which  B  could  recover,  as  it  was  B's 
duty  to  have  informed  A  of  the  insurance  and  its  condi- 
tions. The  distinction  between  this  and  the  English 
case  is  that  in  the  latter  the  bailee  had  agreed  to  store 
in  a  particular  place,  wnile  here  he  had  not,  and  there 
being  no  broach  of  contract  on  his  part,  his  removal  of 
the  chattel  from  one  place  to  another  equally  safe  place 
was  not  negligence  on  his  part,  neither  was  he  bound 
to  inquire  whether  the  bailor  had  a  policy  of  insurance 
upon  it  limited  to  the  former  place.^ 

§  21..  (c)  To  Follow  the  Contract.— A  bailee  must 
not  use  the  property  in  a  manner  different  from  the  in- 
tent of  the  contract.2  The  depositary  has  no  right  to 
use  the  thing  bailed;  and  if  he  does  he  becomes  liable 
absolutely  for  any  injury  or  loss  caused  thereby.''  This 
is  the  general  rule,  yet  it  is  not  universally  applied— 
for: 

1.  The  bailment  may  be  made  with  the  express  in- 
tention that  the  thing  shall  be  used  by  the  bailee  or  the 
bailor  may  have  given  his  consent  to  its  use.  In  a  loan, 
for  use,  for  example,  use  of  the  thing  is  the  very  inten- 
tion of  the  bailment. 

2.  The  use  of  the  thing  may  be  necessary  for  the  bet- 
ter keeping  of  the  deposit.    The  bailee  for  example. 


'  A  bailee  tor  hire  is  not  bound  to  in- 
sure: Story  Bail.  §  4f)6. 

2  Crocker  v.  Gullifer,  44  Me.  491;  69 
Am.  Dec.  118. 

42 


3  Story  Bail.  98;  Persch  ».  Qniggle  67 
Pa.  St  240.    Nor  to  lend  it.    Id, 


1 


€11.  III.] 


THE    GENERAL   PRmCIPLES. 


§21 


may  use  moderately  a  horse  left  in  his  custody;  may 
milk  a  cow  left  with  him,  or  use  the  books  of  a  friend 
in  his  charge,  for  in  each  case  the  use  is  not  only  not 
injurious  to  the  property  but  may  be  nocessaiy  or  useful 
to  its  presen'ation.* 

On  the  other  hand,  if  the  things  would  be  likely  to  be 
injured  by  use,  the  case  would  be  different,  and  if  they 
be  locked  up  in  a  box  or  chest,  or  enclosed  in  a  wrapper 
under  seal,  this  circumstance  would  imply  that  they  are 
not  to  be  used ;  books,  jewelry,  plate  or  pictures  depos- 
ited in  this  manner  should  be  retained  carefully  in  the 
condition  in  which  they  are  received,^  and  it  would  be 
a  great  breach  of  duty  on  his  part  for  him  to  break  the 
seal  or  the  lock  except  under  circumstances  of  emer- 
gency."* If  the  bailee  with  the  bailor's  consent  use  the 
article  to  his  owu  profit  and  advantage,  the  bailment 
will  be  changed  from  a  gratuitous  one  to  one  for  hire. 

A  loan  is  regarded  as  a  personal  favor  and  usually  the 
thing  must  be  used  by  the  boiTower  alone  and  by  no  one 
else,  not  even  his  servant,*  though  it  is  said  that  if  the 
loan  be  for  a  time  certain,  as  of  a  horse  for  a  week  or 
a  month,  this  gives  to  the  borrower  an  interest  in 
the  horse  during  that  time,  which  will  authorize  a  gen- 
eral use,  by  himself  or  his  servant;  but  if  no  time  is 
specified,  the  law  implies  that  a  personal  trust  is  re- 
posed in  the  borrower  that  he  alone  shall  use  the 
chattel.  The  circumstances  of  the  case  or  the  lan- 
guage of  the  parties  must  always  be  examined  into  in 
order  to  show  their  intention  with  respect  to  the  use  of 
the  chattel. 

The  use  must  be  strictly  confined  to  the  time  or  ob- 
ject for  which  the  loan  is  made,  and  if  the  loaned  article 


m 


1  Kdw.  nail.  8!1. 
i;  story  Hail.  90, 
•■!  Selionl.  Hail.  57; 
rutcr,  1  Me.  27. 


Ucrman  v.  Drink- 


*  Story  Ball.  $  234 ;  liringloe  v.  Morrice, 
1  Mod.  210. 


48 


( ■' 


§21 


THE   GENERAL   PKINCIPLES. 


[part  I. 


be  used  differently,  it  is  a  breacli  of  the  trust  under 
which  it  was  loaned,  and  the  borrower  will  be  liable 
for  an  injury  or  loss,  even  by  accident.*  If  a  horse 
be  lent  to  go  to  X,  and  he  be  driven  towards  Y,  in  an- 
other direction,  or  if  he  be  borrowed  for  a  week  and 
kept  for  a  month,  the  borrower  becomes  responsible  for 
any  casualties  that  may  happen  in  the  journey  towards 
Y,  or  after  the  end  of  the  week.-  Sir  William  Jones'' 
gives  other  examples:  If  George  lent  a  masked 
habit  and  jewels  to  Charles,  to  be  worn  by  him  at  a 
masked  ball  to  be  given  on  a  luture  night;  if  on  the  way 
to  or  from  the  place  where  the  ball  is  held  the  borrower 
be  robbed  of  them  at  the  usual  time  of  going  and  re- 
turning, he  will  not  be  answerable  for  their  value;  but 
if  he  go  from  the  ball  to  a  gamiug  house  with  the  jewels, 
he  will  be  responsible  if  he  lose  them  there  by  any 
casualty  whatever.  So,  where  silv(»r  utensils  are  lent 
to  a  man  for  the  purpose  of  entertaining  a  party  of 
friends  at  a  dinner  in  the  city,  and  he  carries  them  into 
the  countrj',  the  borrower  will  be  responsible  if  the 
plate  be  lost  by  any  accident  whatever. 

The  hirer  must  confine  himself  to  the  use  contemplated 
by  the  contract  of  hiring.  If  the  thing  hired  is  used  for 
a  different  purpo.^e  from  that  which  was  intended  by 
the  parties,  or  in  a  different  nuinner,*  or  for  a  longer 
period,  the  hirer  is  not  only  responsible  for  all  damages, 
but  if  a  loss  afterwards  occurs,  although  by  inevitable 


1  Martin  r.  Cnthbcrtson,  M  X.  r.  R2S; 
Buchanan  r.  Smith,  10  Uiin,  474;  Lane  r! 
Cameron,  XH  Wis.  fi03;  Ctillon  v.  Ixinl,  .TO 
Iowa.  302;  Stewart  r.  Davis,  31  Ark.  SIS; 
25  Am.  Rep.  UK;  Kennedy  v.  Ashcroft,  4 
Bn.sh,  630;  Cramp  v.  Mitchell,  34  Miss. 
449;  l)e  Tollenere  i-.  I.'nllor,  1  Mill  Const". 
olT;  12  Am.  Doc.  CIO. 

2  Story  Bail.  §  232;  Cullcn  v.  Lord.  39 
la.  302. 

44 


3  Bail.  09. 

*  Tims  it  has  been  held  that  the  bailor 
of  a  mure  may  maintain  trover  against 
the  bailee  for  willfnl  immoderately  fast 
driving,  seriously  endanpi'ring  her  life, 
forontsido  his  liability  for  negligence 
this  is  a  misuse  of  the  property  bailed: 
Wentworth  v,  McDnflie,  48  N.  U.  402. 


CII.  III.] 


THE   GENERAL    I'KINCIPLES. 


§21 


casualty,  he  will  generally  be  responsible  therefor.' 
There  is  ou  the  part  of  the  hirer,  an  implied  obligation, 
not  only  to  use  the  thing  hired  with  due  care  and  mod- 
eration, but  aLso  not  to  apply  it  to  any  other  use,  nor 
beyond  the  time  for  which  it  was  hired.  We 
have  already  seen  that  in  all  bailments  it  is  a  mis- 
user of  bailed  chattels  to  appropriate  them  to  a  pur- 
pose different  from  that  which  was  intended  by  the  par- 
ties, or  to  use  them  in  a  different  manner,  or  to  detain 
them  for  a  longer  period  than  that  agreed  upon;  and 
such  a  misuser,  at  common  law,  isdeemcnl  a  conversion 
of  the  property,  for  which  the  hirer  is  held  responsible 
to  the  letter  to  the  full  extent  of  his  loss.-  Where  there 
is  no  agreement  as  to  the  manner  in  which  a  hired  chat- 
tel shall  be  used,  the  presumption  and  implied  agree- 
ment between  the  parties  is,  that  it  shall  be  used  in  the 
ordinary  manner,  and  for  the  purposes  to  which  it  is 
naturally  fitted.  Thus,  if  a  horse  is  hired  as  a  saddle 
horse,  the  hirer  has  no  right  to  use  him  in  a  cart,  or  to 
carry  loads,  or  as  a  beast  of  burden.  So,  on  a  contract  for 
the  hire  of  a  ve^hicle  usually  employed  to  cany  two  per- 
sons, both  parties  being  silent  as  to  the  number  of  per- 
sons who  are  to  be  permitted  to  ride  in  it,  the  hirer  is 
authorized  to  carry'  such  a  number  as  the  carriage  was 
made  for.''     A  general  hiring  of  a  horse  and  carriage 


1  Jl 


1  Fisher  t'.  Kyle,  27  Mich.  464;  Went- 
worth  t'.  McDnffle,  48  N.  II.  402;  Itay  f. 
Tnbbs,  50  Vt.  688;  27  Am.  Kep.  519;  Lane 
V.  Cameron,  3H  Wis.  60!) ;  Lncas  t».  Tmm- 
bnll,  IS  Gray,  ."iOO ;  Huchanan  v.  Smith,  10 
Hnn,  474;  Wheelock  v.  Wheelwright,  6 
Mass.  104 ;  noiiier  r.  Thwing,  .S  Pick,  492 ; 
Stewart  V.  Davis,  31  Ark.  618;  25  Am. 
Rep.  676;  Gorman  v.  Campbell,  14  Ga. 
137;  Duncan  f.  K.  K.  Co.,  2  Rich.  613; 
Robinson  1'.  Parnoll,  16  Tex.  .S82;  Butler 
V.  Walker,  Rice,  182;  I.«wis  v.  McAfee,  H2 
Ga.  405;  McNeill  V.  Brooks,  1  Yerg.  75; 
Schcnck  i>.  Strong,  4  N.  J.  L.87;  Rotch 


V.  Hawes,  12  Tick.  136 ;  22  Am.  Dec.  414 ; 
Malonc  v.  Robinson,  77  Ga.  719;  Malaney 
t'.  Taft,  60  Vt.  571 ;  6  Am.  St.  Rep.  135 ;  16 
Atl.  Rep.  326. 

2  In  the  days  of  slavery  the  hiring  of  a 
slave  was  a  bailment,  but  when  a  slave 
was  hired  to  do  one  kind  of  work  and 
was  injured  while  doing  another  kind, 
the  hirer  was  regarded  as  absolutely 
liable  for  any  injury  to  him  while  so 
employed.  See  Sims  v.  Chance,  7  Tex. 
561;  Hooks  V.  Smith,  IS  Ala.  388;  Mayor 
V.  Howard,  6  Ga.  213. 

S  Edw.  Bail.  328. 

45 


i  •' 


§22 


TIIE  GENERAL   PKINCIPLE8. 


[part  I. 


from  a  livery  stable  would  give  authority  to  use  it  in 
driving  in  any  direction  and  to  any  place  where  persons 
are  in  the  habit  of  driving,  and  for  a  reasonable  time. 
But  if  a  horse  is  hired  to  be  driven  a  specified  distance 
and  it  is  driven  further/  or  to  a  specified  place  and  it 
is  taken  to  another  place,^  the  bailee  is  responsible 
though  the  horse  is  injured  without  his  fault. 

In  all  these  cases  the  reason  of  the  law  is  that  if  it 
had  not  been  used  otherwise  than  it  was  lent  or  hired  to 
be,  the  accident  would  probably  not  have  befallen  it, 
and  that  by  exceeding  the  authority  given  him  the  bor- 
rower or  hirer  disaffirms  the  contract  and  exercises 
an  act  of  ownership  over  the  property  inconsistent  with 
the  rights  of  the  bailor. 

And  iu  all  bailments,  to  use,  or  keep,  or  do  work  upon 
a  thing,  the  contract,  as  we  have  seen,  gives  the  bailee 
no  right  to  sell  it,  though  a  bailee  for  hire  may 
transfer  his  interest  in  the  property.' 

§  22.  (d)  To  Re-deliver  the  Thing.— The  bailee 
must  restore  the  chattel  to  the  bailor  at  the  end  of  the 
term,''  for  a  refusal  to  deliver  on  demand,  or  at  the  time 
and  place  stipulated,  is  evidence  of  a  conversion  of  the 


1  Wheclock  v.  Wheolright,  6  Mass.  104 ; 
Frost  r.  Plumb,  40  Conn.  14 ;  Uotch  v. 
Uawcs,  12  Pick.  US;  22  Am.  Dec.  414; 
Fisher  r.  Kjic,  27  Mich.  4.'j4 ;  Wooilman  r. 
Uubbanl,  25  N.  n.  f>7 ;  57  Am.  Dee.  a\0 ; 
Lncas  v.  TnrnbuU,  15  Gray,  306;  Mnrphy 
V.  Kanffman,  20  La.  Am.  B.W. 

2  Unrti'.  .Skinner,  16  Vt.  1.S8;  42  Am. 
Deo.  ROO ;  Uay  r.  Tubbs,  50  Vt.  G88 ;  28  Am. 
Rep.  619;  Martin  v.  Cuthbertson,  64  N. 
C.  328 ;  Iloracr  v.  Th winp,  3  Pick.  492.  It 
is  held  in  Massachusetts  that  where  one 
hires  a  horse  to  drive  to  a  particular 
place,  ami  in  returning  unintentionally 
takes  the  wrons  roail,  and  after  travel- 
ing on  such  road  a  few  miles  discovers 
his  mistake,  and  takes  what  he  con- 
siders the  best  way  back  to  the  place  of 
hiring,  which  is  by  a  circuit  through 
anothcrtown,  he  is  not  liable  to  trover  for 

46 


the  conversion  of  the  horse :  Spoonor  v. 
Manchester,  WS  Mass.  270;  4.')  Am.  llep. 
514. 

8  Bailey  r.  Oolby,  .'14  N.  II.  29;  66  Am. 
Dec.  752;  Nash  v.  Mosher,  19  Wend.  431 ; 
Vincent  r.  Cornell,  13  Pick  294;  23  Am. 
Dec.  083. 

4  Schonl.  on  Bail.  154;  l,ny  r.  I.awson, 
23  Ala.  377 ;  ISailey  r.  Colby,  ,34  N.  U.  29 ; 

66  Am.  Dec.  752;  Ilunl  v.  West,  7  Cow. 
752;  Pribble  v.  Kent,  10  Ind.  325 ;  71  Am. 
Dec.  327 ;  Willmer  v.  Morrell,  40  N.  Y.  (S. 
C.)  222 ;  Ix)ng  Island  Brewery  Co.  ti.  Fitz- 
patrick,  18  llun,  389;  Simpson  v.  Wrenn, 
50111.222;  99  Am.  Dec.  611;  Barnard  f. 
Kobbe,  3Daly,  35;  Maxwell  f.  Houston, 

67  N.  C.  305;  Dodge  v.  Meyer,  61  Cal.  405; 
Kstes  V.  Boothc,  20  Ark.  583;  South. 
Australian  Ins.  Co.  v.  Kandell,  L.  R.  3 
P.  C.  101. 


ClI 

PI 

v| 


PI 

el 
hi 

01 

vl 
kl 

it 
t 
b 


CII.  Ill  ] 


THE   GENERAL   PRINCIPLES. 


§22 


property,  which  will  render  the  bailee  liable  for  its 
value.* 

The  duty  to  re-deliver  is  absolute,  if  it  is  within  the 
power  of  the  bailee.  Ilence,  if  a  bailee  deliver  the  prop- 
erty to  one  whom  he  mistakingly  thinks  was  the  owner, 
he  is  liable  without  regard  to  the  question  of  due  care 
or  degree  of  negligence.^  Negligence  is  always  rele- 
vant where  the  issue  is  as  to  whether  the  bailee  has 
kept  the  property  as  he  should,  but  not  where  having 
it  in  his  hands  he  has  made  re-delivery  to  another  thain 
the  bailor,  and  the  bailee  is  responsible,  therefore,  if  he 
by  mistake  deliver  the  things  bailed  to  the  wrong  per- 
son; and  a  forged  order  for  them  will  not  protect  him.-^ 
Property  may  be  demanded  of  a  bailee  whei-ever  he 
may  be  at  the  time,  and  although  he  is  not  bound  to  de- 
liver it  at  that  place.  If  the  bailee  answers  that  he  is 
ready  to  deliver  at  the  proper  place,  there  will  be  no 
breach  of  his  duty ;  but  if  he  deny  the  right  of  the  bailor, 
and  refuse  to  deliver  the  property  at  all,  there  is  noi  use 
in  making  another  demand,  and  the  bailee  will  be  an- 
swerable in  the  proper  action.* 


1  story  Hail.  §  122 ;  Vanghan  f.  Web- 
ster, B  Uarr.  (Del.)  250;  Winkley  r.  Koye, 
33  N.  II.  171;  66  Am.  Dec.  71S;  Koulstou 
V.  McOlcllaml,  2  K.  D.  Smith,  60;  Wilson 
V.  K.  Co.,  62  Cal.  164;  Bush  v.  Miller.  13 
Barb.  481. 

2  Jenkins  V.  Bacon,  HI  Mass.  ,37.'!;  IB 
Am.  Uep.  .33;  LancasterCo.  Bk.  v.  Smith, 
G2ra.  St.  47;  Stewart  v.  Frazier,  6  .Ma. 
1 U ;  Ganlpy  r.  Troy  City  Bk.  98  N.  Y.  487 ; 
Bank  of  Oswego  f.  Doyle,  91  N.  Y.  .32 ; 
43  Am.  Uep.  634 ;  .Jeffersonville  K.  U.  Co. 
f.  White,  fiBnsh,  251;  Alabama,  etc.  R. 
R.  Co.  f.  Kidil,  35  Ala.  209;  Willard  v. 
Bridge,  4  Barb.  361 ;  Dufour  v.  Mefham, 
31  Mo.  677;  Graves  f.  Smith,  14  Wis.  B; 
80  Am.  Dec.  762  An  owner  of  a  bath 
hoosc,  who  gives  a  check  to  a  bather  for 
valuables  left  in  his  custody,  and,  know- 
ing well  both  the  bather  and  the  valn- 
ablcs,   gives   the   valuables   to  another 


person  on  presentation  of  the  check,  is 
liable  for  their  valne :  Tombler  v.  Koel- 
ling,  28  8.  W.  Rep.  795  (Ark.) 

3  Parker  r.  Ixjmbard,  100  Mass.  405; 
McGinn  r.  Butler,  31  Iowa,  ICO;  Dufour 
V.  Mefham,  31  Mo.  577;  Stevenson  f. 
I'rice,  30  Tex.  715;  Willard  r.  Bridge,  4 
Barb.  361;  Collins  v.  Burns,  63  N.  n.  1; 
Alabama,  etc.  R.  R.  Co.  t'.  Kidd,  35  Ala. 
201);  Jeffersonville,  etc.  U.  R.  Co.,  f. 
White,  6  Bush,  251 ;  I.ichteuhcin  v.  R.  R. 
Co.,UCush.  70;  Forsytho  f.  Walker,  9 
Pa.  St.  140;  Hall  r.  R.  R.  Co.,  14  Allen, 
439;  92  Am.  Dee.  783;  Rowing  v.  Manley, 
49  N.  Y.  192 ;  10  Am.  Rep.  346. 

4  Dnnlap  r.  Hunting,  2  Dcnio.  643;  43 
Am.  Dec,  763;  .Scott  f.  Crane,  1  Cow. 
255;  niggins  v.  Emmons,  5  Conn.  76;  13 
Am.  Dec.  41;  Slingerland  v.  Morse,  8 
Johns.  474;  Mason  v.  Briggs,  16  Mass. 
463;  2  Kent's  Cora.  608, 

47 


^ 


§22 


THE   (IKNKKAL    IMUNCU'LEH. 


[part  I. 


In  a  loan  for  use,  there  h  always  an  implied  agree- 
ment to  re-deliver  the  thing  loaned  as  soon  as  the  time 
has  expired  for  which  the  loan  was  made;  or  if  no  time 
was  speciliiHl,  within  a  reasonable  time  after  the  pur- 
pose of  the  loan  has  been  aecomplished.  While  the 
depositary  may  retain  them  until  a  demand  is  made 
for  them;'  and  a  mandatary  is  not  to  be  presumed  in 
fault  until  after  he  has  been  c  illed  upon  for  the  prop- 
erty intrusted  to  him;-'  tlie  borrower  must  return  the 
loan  within  the  time  limited,  and  an  action  lies  against 
him  if  he  fail  to  do  so  without  any  previous  demand.'' 

If  the  time  is  fLxed  by  agreement  or  by  the  nature  of 
the  object  to  be  accom[tlished,  a  bail(H.»  must  return  the 
property  at  that  time;  if  not  so  fixed,  whenever  called 
upon,  after  a  reasonable  time.^ 

If  no  place  is  specitied  for  their  delivery,  the  chattels 
are  deliverable  at  the  place  where  they  were  received, 
and  the  Ixiilee  cannot  be  requircnl  to  produce  them  at 
any  other  place,  unless  he  has  voluntarily  stipulated 
to  do  so."'  As  in  other  cases,  the  express  terms  of  the  con- 
tract itself  regulates  the  place  and  mode  of  the  redeliv- 
ery,  and  the  time  or  event  on  the  occuiTence  of  which 
it  is  to  be  made;  the  bailor  cannot  recover  them  until 
they  have  been  properly  demanded  according  to  the 
contract;  neither  can  he  require  their  deliverj'  at  any 
other  place  or  time  than  that  specified."  The  borrower 
must  retuim  them  to  the  lender,  ordinarily  at  the  place 
from  which  he  received  them ;  but  the  lender  may  desig- 


^ 


1  Brown  v.  Cook,  9  Johns.  3C1. 

2  Bcardslcy  v.  Hich.-irdson,  11  Weml.  25. 

3  Story  Bail.  257;  Clapp  i-.  Xtlson,  12 
Tes.  .S70;  62  Am.  Dec.  530;  Grcfu  v. 
HolUngsworth,  8  Dana,  175 ;  30  Am.  Dec. 
680.  But  if  no  time  is  fixed  a  deinaud 
is  nsually  required:  Clapp  v.  Nelson, 
ante;  Gilbert  v.  Manchester  Co.,  11 
Wend.  62S. 

48 


*  Colib  V.  Walliicc,  5  Cold.  S.'W;  98  Am. 
Dec.  i;]5. 

«  Itrown  V.  Cook,  9  Johns.  3fil ;  Mason 
r.  Briggs,  16  Mass.  45,S;  2  Kent  Cora.  608. 

«  Carle  v.  Bearce,  S3  Me.  337 ;  Esmay 
t'.  Fanning,  9  Barb.  176. 


Ti 


n, 


on.  III.] 


THE  oj:nekal  principles. 


§23 


i 

i 


'i 


nate  the  place  where  they  shall  be  received.  The  bor- 
rower, no  place  being  appointed  for  the  delivery,  must, 
It  seeins,  see^k  the  lender  and  learn  at  what  place  he 
will  receive  th(Mn.* 

But  tlie  place  where  they  are  to  be  restored  is  always 
determined  with  reference  to  the  nature  of  the  thing 
to  be  re-delivered,  and  the  relative  situation  and  circum- 
stances of  the  parties  to  the  contract  of  bailment. 

§  23.  Excuses  tor  Non-Delivery. — The  bailee  may, 
however,  show:  1.  That  the  thing  has  been  taken  out 
of  his  hands  at  the  suit  of  one  having  a  paramount 
title.2 

2.  That  he  had  delivered  it  to  the  true  owner 
on  demand  (for  this  he  couhl  not  refuse  without  being 
subject  to  an  action  by  him"),  or  has  been  not  itied  by  the 
true  owner  not  to  deliver  to  the  bailor.^  To  avoid  the 
inconvenience  of  a  double  litigation,  where  there  are 
rival  claimant.s  to  the  property,  and  an  action  is 
brought  against  the  bailee  for  its  detention,  a  conven- 
ient remedy  is  furnished  in  courts  of  equity  by  a  bill  of 
interpleader,  which  may  be  filed  where  the  plaintiff 
staiuls  in  the  situation  of  an  innocent  stakeholder, 
against  defendants  claiming  of  him  the  property,  fund 
or  duty,  by  different  or  separate  interests.""'  The  bill  of 
interpleader  shows:  1.  That  two  or  more  persons  have 
preferred  a  claim  against  the  complainant;  2.  That  they 
<laim  the  same  thing;  3.  That  the  complainant  has  no 
beneficial  interest  in  the  thing  claimed;    and  4.  That 


1  Ksmny  v,  Faiininfr,  !)  Bnrb.  170;  5 
How.  I'r.  • ;  Uutgors  r.  Luci't,  2  Johns. 
Cos.  92. 

2  KoUy  V.  ratcholl,  5  W.  Vii.  fi85;  Cook 
r.  IIi>lt,  48  N.  Y.  27.»;  Kilson  r.  Weston,  7 
(.'o\v.  278;  Bcntou  r.  Wilkinson,  18  Vt. 
18fi;4(>  Am.  Dec.  145. 

3  1)01  >  Hawkins,  C  N'.  U.  247 ;  26  Am. 
Dec.  46'.     Bates  v.  Stanton,  1  Duer,  79 ; 


Hnrd  r.  Wost,  7  Cow.  7!)2;  Story  Ball. 
§  §  102,  laS;  .Stephens  f.  Viiughan,  4  J.  J. 
Marsh,  206;  20  Am.  Djc.  216 ;  Roberts  v. 
Yarboro,  41  Tex.  449. 

4  Kelly  f.  Patchell,  6  W.  Va.  685;  Car- 
roll f.  Mix.  61  Barb.  212. 

s  Kdw.  Bail.  84;  Ball  v.  Liney,  48  N.  Y. 
6;  8  Am.  Rep.  611. 

49 


•■ '  1 


(  'M 


§24 


THE   TWO   GREAT  DIVISIONS. 


[part  I. 


he  caDuot  determine,  without  hazard  to  himself,  to 
which  of  the  defendants  the  thing  of  right  belongs.' 
3.    That  they  have  been  destroyed  or  lost  while  in  his 
hands  without  his  fault. 

§  24.  The  Duties  of  the  Bailor.— The  duties  of  the 
bailor  are  to  conform  on  his  part  to  the  obligations 
of  the  bailment  contract.  In  the  case  of  a  bailment  for 
a  term  or  purpose  founded  on  a  consideration  he  must 
allow  the  bailee  the  free  and  exclusive  use  of  the  chat- 
tel during  that  time  and  must  not  molest  him  except 
for  cause.-  And  he  must  likewise  see  to  it  that  the 
bailee  suffers  no  injury  through  his  act.  Even  a  lender 
must  not  lend  a  defective  or  dangerous  thing  which  ho 
knows  to  be  so,^  without  notifying  the  borrower;  "for 
even  a  gratuitous  lending  should  be  to  confer  a  benefit, 
not  to  do  a  mischief."^  But  though  a  liverv  man  who 
negligently  furnishes  an  unsuitable  horse  cannot  show 
as  an  excuse  that  he  did  not  know  it  was  so,''  yet  a 
liveryman  who  lets  a  horse  does  not  warrant  that  it 
is  free  from  defects  which  he  does  not  know  of,  and 
could  not  have  discovered  by  tlie  exercise  of  due  care; 
and,  where  a  hirer  is  injured  through  such  defects,  the 
liveryman  is  not  liable." 


1  Atkinson  v.  Manks,  l  Cow.  70.1.  The 
fact  that  an  adverse  claim  is  made  to 
the  property  does  not  entitle  a  ware- 
houseman to  require  a  bond  of  indemnity 
fromtlie  true  owner  as  a  condition  of 
delivering  the  property.  The  remedy  is 
by  an  interpleader:    Banlield  v.  Ilacgor, 

7  Abb.  N.  C.  .SIH;  i^  N,  Y.  (S   C.)  4'.'8. 

2  Uiekok  r.  Uuck,  22  Vt.  149;  Hartford 
t'.  Johnson  11  N.  U.  145. 

3  JfcCarthy  f.  Young,  fi  II.  A  X.  329. 

■•  Schonl.  liail.  8«;  Bhikemore  v.  K.  Co. 

8  Kl.  &  Bl.  lOM. 

»  Ilorno  I'.  Meakin,  115  Mass.  326; 
Wendlo  v.  Jordan,  75  Me.  149. 

50 


6  Hadloy  r.  Cross,  .S4  Vt.  6m,  80  Am. 
Di^c.  GM;  Copeland  r.  Draper,  32  N.  K. 
Uep.  944  (Mas:;.)  the  court  saying,  "In 
the  case  at  bar,  negligence  was  excluded 
by  the  plaintiff's  admission  that  there 
was  no  evidence  that  the  defendant 
knew,  or  by  the  exercise  of  reasonable 
care  could  have  known,  tha*  the  horse 
was  Tinsnitablc,  it  in  fact  it  was.  There- 
fore, in  order  to  recover,  the  plainti."" 
nmst  maintain  that  a  livery  stable 
keeper  warrants  or  insures  the  snitablc- 
ness  of  every  horse  which  ho  lets.  No 
such  liability  is  imposed  on  him  by  the 
fact  that  he  follows  a  common  calling, 


\ 


iiiiy  more  tlian  it  it;  u|)oii  every  iiiuu  who 
koejis  !i  sliop.  Kven  in  old  times,  the 
exercise  of  a,  common  calling  only  re- 
quired II  man  to  show  skill  in  his  liiisi- 
noss.  Kitzh.  Nat.  IJrov.  !I4, 1);  XoitIs  r. 
Staps,  IIol).  2106,  211;  3  IM.  Comm.  lf)4; 
Rvxv.  Kilderhy,  1  \V.  Saund.  311,  312, 
note  2.  Common  carriers  were  insurers, 
not  hecnuso  they  hud  a  common  calling, 
but  because  they  were  bailees,  coiiphMl 
with  certain  gradual  changes  in  the  law, 
not  material  liere.  If  it  should  be 
sought  to  charge  the  defendant  for  the 
horse  as  for  a  dangerous  animal,  the 
liability  for  a  horse  on  that  ground, 
apart  from  bailment,  is  confined  to  cases 
where  the  owner  has  notice  of  the  dan- 
gerous tendency:  Com.  t'.  Tierce,  13s 
Mass.  Ifi.-),  179;  Dickson  f.  McCoy,  3!)  \. 
Y.  400,  403.  See  also  Hawks  i:  Locke,  1311 
Mass.  2or),  208,  1  X.  K.  Hep.  043.  The  sug- 
gestion has  been  made,  following  Mr. 
.Justice  Story's  statement  of  the  doctrine 
of  I'othier,  that  bailors  tor  hire  generally 
warrant  the  suitableness  of  the  thing 
let,  (Harrington  v.  .Snyder,  3  Ilarb.  3H0, 
.381;  Story  Bail.  §  §  3H3,  300;)  but  the 
common  law  in  general  applies  the 
principle  of  caveat  emptor  when  the 
hirer  has  examined  the  article,  (Cutter 
f.  riamlen,  147  Mass.  471,  47,'5,  18  \.  K. 
Kcp.  397.  See,  further,  Hawks  v.  Locke, 
supra;  McCarthy  v.  Young,  G  H.  &  \. 
329.)  The  supposed  warranty,  if  it  ex- 
isted, could  not  be  placed  on  any  of  the 


foregoing  considerations,  hut  woiilil 
liave  to  stand  on  the  analogy  of  eai'viers 
of  passengers,  taking  their  lial)ility  in 
the  strictest  form  in  w  hich  it  ever  has 
been  taken.  There  have  been  intima- 
tions, if  not  decision.'-,  in  favor  ()l  siicli  a 
view  with  regard  to  vehicles  let  fcr  t!ie 
known  purpose  of  carrying  passengers, 
(Jones  r.  Tage,  15  L.  T.  (N.  .s.)  (119;  Leach 
r.  French,  09  .Me.  ,3K9,  .392 ;  Harrington  c. 
Sny<ler,  3  Barb.  .380;  Kissa'i  f.  Jones, !")  I 
Hun,  432,  434;  10  X.  Y.  Supp.  94.  Com- 
pare Francis  v.  Cockrell,  L.  II.  H  Q.  I!. 
501,  503;  Fowler  r.  I»ck,  L.  U.  7  C.  P.  272, 
L.  U.  9  C.  r.  751,  note,  L.  It.  10  C.  V,  90;) 
but  an  opposite  decision  was  reacheil  in 
Hadley  r.  ('ross,  ,34  Vt.  .Vo,  and  in  this 
commonwealth  even  carriers  of  pas- 
sengers do  not  warrant  their  vehicles, 
and  are  not  liable  if  wholly  free  from 
negligence,  (Ingalls  r.  Bills,  9  Mete. 
(.Mass.)  1;  White  t:  Itailroad  Co.,  l.!« 
Mass.  ,321,  324;  deadhead  i:  R.  Co.,  L.  U. 
2  (J.  B.  412,  L.  It.  4  <i.  15.  379.)  It  follows, 
a  fortiori,  that  one  who  lets  a  horse 
does  not  warrant  that  it  is  free  from  de- 
fects which  he  does  not  know  of,  and 
coulil  not  have  discovered  by  the  exer- 
cise of  due  care.  See  Story  Bail.  §.S91tt; 
Kdw.  Bail.  §  373." 

1  Reading  v.  Price,  3  .1.  .1.  Marsh,  01 ;  19 
\m.  Dec.  102. 

2  Harrington   r,  Snyder,  3   Barb.   ,380; 
I'arker  v.  Marcjuis,  04  Mo.  .38. 

3  Uerlihy  i-.  Smith,  116  Mass.  205. 

51 


on.  III.] 


THE   GENERAL   PRINCIPLES. 


§25 


If  the  owner  knows  the  thing  is  defective,  the  hirer 
may  return  it  as  soon  as  he  discovers  the  defect,  and  is 
net  liable  to  pay  for  its  use,'  but  may  recover  such  ex- 
pense as  he  has  been  put  to,  from  the  owner.- 

The  bailor  is  not  liable  for  the  act  of  the  bailee  in  so 
using  the  loaned  chattel  as  to  do  injury  to  third  per- 
sons.^ 

Another  duty  of  the  bailor  is  in  regard  to: 

§  25.     Compensation  and  Reimbursement. — The 

bailee  for  hire  is  entitled  to  compensation  for  his  ser- 
vices. This,  if  not  a  matter  of  express  contract  as  to 
amount,  must  be  regulated  by  the  usual  price  paid  for 


jif 

■i;  '• 


(•' 


§25 


THE   GKNEKAL   PRINCIPLES. 


fPABT  I. 


CllJ 


similar  services  under  the  same  circumstances.  And 
it  is  to  be  remembered  that  tliougb  nothing  is  said 
about  payment,  the  law  implies  a  promise  to  pay  for 
services  rendered  upon  request,  unless  it  appears  that 
there  is  an  understanding  that  no  compensation  shall 
be  rendered.' 

If  through  no  fault  of  his,  the  chattel  is  destroyed 
so  that  he  is  unable  to  complete  the  service,  the  modern 
doctrine  is  that  he  may  recover  for  what  he  has  done  up 
to  that  time;  though,  if  he  wilfully  refuse  to  complete 
or  the  destruction  is  through  his  neglect,  he  loses  the 
value  of  his  services  upon  it.-  Rut  the  numerous  ques- 
tions relative  to  the  bailee's  recovery  for  his  labor  or 
services  belong  to  the  Law  of  Contract  generally,  and 
have  already  been  discussed  in  my  previous  work.'' 

In  a  hiring  of  chattels,  where  there  has  been  a  par- 
tial use  of  the  things  bailed  and  then  a  total  loss  of 
them  without  fault  on  the  part  of  the  bailee,  a  compen- 
sation is  allowed  pro  tauto.*  The  common  law  rule 
that  when  a  tenant  leases  real  estate  for  a  term,  he 
must  pay  the  rent  for  that  term,  notwithstanding  the 
building  which  alone  rendered  It  valuable  is  destroyed 
by  fire,  is  not  applicable  to  a  bailment  of  chattels,  be- 
cause the  tenant  acquires  a  perfect  right  over  the  real 
estate  so  hired  for  his  entire  term;  the  consideration 
for  his  covenant  to  pay  rent  is  modified  by  such  a 
casualty  as  lire,  but  it  is  not  wholly  destroyed,  as  it  is 
in  the  case  of  the  destruction  of  a  chattel  hired  for  a 
term." 

Ordinary  expenses  are  to  be  borne  by  the  hirer  for 
use;  unless  the  manner  and  circumstances  of  the  con- 


1  Ijiws.  Contr.  §  3«. 

2  Sc«  Laws.  Contr.  §  §  4G7,  470 ; 
Schoul.  Bail.  113;  McConiho  v.  U.  Co.,  20 
N.  Y.  4!W;  75  Am.  Dec.  420. 

»  See  my  treatise  on  the  principles  of 

52 


the  Anioriran  Law  of  Contracts  pub. 
li'^lici)  in  I8y;!. 

*  Kdw.  Bail. ;  Young  v.  Bruce,  5  Litt. 
324 ;  CoUip-  f.  WooUrnf!,  4  Ark.  4C3. 

»  Edw.  Bail.  837. 


tn 
cbl 

W' 

thl 
erj 
thl 
tal 
th 
cii 
be 
di 


OH.  III.] 


THE   GENERAL   PRINCIPLES. 


§25 


\ 


tract  be  such  as  to  imply  a  different  agreement.  If  the 
chattels  be  hired  for  a  length  of  time,  the  inference 
would  seem  to  be  that  the  hirer  undertakes  to  keep  the 
things  in  ordin  .>  repair  as  he  would  his  own  prop- 
erty.^ But  exi  :•>  ordinary  expenses  must  be  borne  by 
the  owner  and  not  the  hirer.-  Thus,  if  a  hired  horse  is 
taken  sick  on  a  journey,  without  the  fault  of  the  hirer, 
the  expenses  which  are  bona  fide  incurred  for  his  medi- 
cine, nourishment  and  care,  during  his  sickness,  are  to 
be  borne  by  the  owner,  whether  the  horse  recovers  or 
dies  of  the  malady.^ 

The  lender  must  reimburse  the  borrower  for  extra- 
ordinary expenses  occasioned  in  preserving  the  chat- 
tel.* By  this  is  not  meant  the  ordinary  expense  of 
keeping  the  thing  loaned,  which  must  always  be  borne 
by  the  borrower,  but  an  expense  not  contemplated  by 
the  parties  at  the  time  the  loan  was  made,  and  which 
is  essential  to  the  preservation  of  the  thing.  But  the 
authority  to  create  such  a  charge  is  implied  to  the 
borrower  in  those  cases  only  where  the  case  is  so  urgent 
that  the  lender  cannot  be  notified  of  tbe  necessity  in 
time  to  decide  in  the  matter  himself.'^ 

In  the  case  of  gratuitous  bailments,  though  the  bailee 
cannot  ask  for  compensation  jet  the  bailor  must  reim- 
burse him  the  money  he  has  i;<ivanced  for  the  safe  keep- 
ing of  the  thing,  and  indemnify  liim  for  all  it  has  cost 
him.     Ue  must  also  indemnify  the  depositary  for  the 


1  story  nail.  §  388.  A  bailoo  has  au- 
thority to  bind  the  bailor  by  a  contract 
for  the  preservation  anil  care  of  the 
property  in  his  possession,  even  thon);h 
the  bailee  Is  liable  in  such  case  npon  a 
particular  contract:  Ilarter  r.  Illanch- 
ard,  64  Barb.  617.    The  hirer  of  a  horso  is 


bound  to  supply  it  with  food :  Handford 
V.  I'alnier.  5  Moore.  74 ;  3  Hall  ft  B.  3.59. 

2  lA'ach  f.  French,  69  .Me.  399;  31  Am. 
Uep.  296. 

a  Id. 

4  .Schonl.  Bail.  S  86. 

s  Kdw.  Bail.  163. 


I 


it  ii 


53 


'A 


// 


§25 


THE  GENP]RAL  ritlNCIPLES. 


[part  I. 


losses  which  the  tiling  deposited  may  have  occasioned 
him.' 

If  the  mandator  gives  his  goods  to  the  bailee  with 
a  view  to  having  something  done  to  them,  in  the  pro- 
cess of  which  the  bailee  must  necessarily  incur  ex- 
pense, he  is  bound  to  reimburse  him;  "for  it  can  never 
be  presumed  that  a  gratuitous  trust  is  designed  to  be 
a  burden  on  the  mandatory."-  If,  however,  the  ex- 
penses have  been  incurred  wantonly,  if  they  were  un- 
necessary or  in  excess  of  what  was  necessary,  if  the 
necessity  for  the  outlay  arose  from  the  gross  negligence 
of  the  bailee— from  his  fraud,  or  from  an  unwarranted 
departure  from  the  duties  imposed  by  the  terms  of  the 
bailment — they  are  not  reimbursable. 

"If,"  says  Mr.  Browne,  "the  proximate  cause  of  the 
injury  can  be  directly  traced  to  the  execution  of  the 
trust,  then,  by  the  civil  law,  the  nuindator  was  liable 
to  the  mandatary.  If,  however,  (he  execution  of  the 
mandate  was  only  the  occasion  of  the  injuries  suffered 
by  the  mandatary,  then  the  bailor  was  not  liable.''-'  If, 
for  examj)le,  A  asks  B  to  take  some  money  for  him  from 
Chicago  to  ^Tew  York,  and  on  the  way  B  is  robbed  of 
his  own  money  as  well  as  his  friend's,  A  is  not  liable 
for  B's  loss.  But  if  he  asks  B  to  carry  his  money 
through  a  country  infested  with  robbers,  A  would  be 
liable,  for  in  the  first  case  the  mandate  was  only  the 
occasion  for  the  loss,  while  in  the  latter  it  was  the 
cause. 


1  Preston  t'.  KpbIp,  12  Orny, 222 ;  Rceder 
f.  Anderson,  4  Dim'i,  19.5;  Harter  r. 
Blanchnril,  64  Barb.  017;  Dale  r.  Ilrinck- 
crhoff,  7  I>iily,  45.  Iltit  at  tommon  law 
there  is  no  lien  for  such  charges:  I'rcs- 
ton  r.  Neale,  12  (iray,  222;  llcvani  r 
(ihio,  3  E.V.  Suiith,  2(;4 ;  art' }io»t.  §27". 
If  tUe  bailee  comes  intothe  possessionut 


the  property  by  flndinp,  end  the  owner 
offers  a  rewani  lor  the  re>torati()n  of  It 
to  him,  tin'  rewarcl  beeonies  i\  lien  on 
the  iiroperly:  Laws.  Ifights,  Item.  & 
I'r.  §  1710. 

'i  Hrowno  f'arr,  §  .si ;  Story  Bail.  ?  197. 

■1  Browne  Carr,  §  31,  eiting  .Story  Bail. 
5  200. 


CII.  III.] 


THE   GFNERAL   PRINCIPLES. 


§26 


§  26.    The  £.ien  Upon  a  Chattel  for  Services. — 

A  lien  at  common  law  is  a  right  to  retain  possession  of 
property  belonging  to  another  until  a  claim  of  the 
party  in  possession  against  the  owner  is  satisfied,  and 
it  arises  by  operation  of  law  without  any  agreement  of 
the  parties.'  Liens  are  of  two  kinds,  partkular  and 
general.  A  particular  lien  (called  also  a  specific  lien), 
attaches  only  to  the  particular  chattels  for  work  done 
upon  or  in  connection  with  them.  A  general  lien  at- 
taches to  all  goods  in  the  possession  of  the  individual 
in  wliom  the  right  is  vested,  and  that  for  claims  or  de- 
mands which  need  not  necessarily  arise  in  relation  to 
the  goods  retained,  but  for  general  claims  upon  trans- 
actions of  a  nature  analogous  to  that  which  brought 
the  specific  goods  retained  into  the  possession  of  the 
person  exercising  the  right.-  Grave  doubts  have  been 
entertained  as  to  the  advisability  of  the  existence  of  a 
general  lien;  it  has  been  regarded  with  much  jealousy 
by  courts  of  law,"'  and  will  not  be  allowed  in  the  ab- 
sence <jf  an  <'Xi»ress  agreement  between  the  parties,  or 
clear  evidence  of  a  settled  and  uniform  cvistom  in  the 
I)articular  trade  or  business.*  Thus,  one  tendered  pay- 
ment for  work  on  a  specific  article,  cannot  claim  a  lien 
ui)on  it  for  charges  for  work  on  other  articles  belong- 
ing to  the  same  owner,"  unless  the  contract  was  for  a 
gross  sum  to  be  paid  for  the  work  done  on  all." 

The  bailee  may  enforce  his  lien  against  creditors  of 
the  owner,  as  well  as  against  the  owner  himself,'  or 
against  one  who  has  permitted  the  bailor  to  have  pos- 
si'ssion  of  tlie  article,**  but  not  against  an  owner  who 


1  Lawson  Ilinhts,  Ucni.  &  IT.  §:ino.1. 

-  Ilrowni'  Carr,  §  ii  ;  Meyer  r.  Jarobs, 
1  Daly  32. 

•1  Itushforth  f.  IladlleUl,  7  Kast. 

*  ImIw.  ISuil.  J308;Monlt<)n  f.Grceno,  10 
It.  1.  3:!n. 

•'■  Monlton  r.  tircfne,  inl{.  I.  330. 


n  Honsel  r.  Noble,  95  Ta.  .St.  .34.5 ;  40 
Am.  Itep.  069. 

7. Moore  r.  Ilitohpoek,  4  Wend.  2;t2; 
Itiickurr.  Donovan,  13  Kas.  2.M. 

H  White  V.  Smith,  44  X.  J.  (S.)  105;  43 
Am.  liep.  34. 

56 


i'f 


■M 


§26 


TUB   GENERAL   PKINCIPLES, 


[part  I. 


has  had  the  thing  taken  from  him  without  his  consent' 
And  as  it  is  accessory  to  the  right  of  compensation  for 
the  services,  it  is  defeated  by  whatever  defeats  that 
claim.^ 

It  is  the  very  essence  of  the  lien,  that  the  person 
claiming  it  has  the  possession  of  the  chattel  upon 
which  the  lien  is  claimed  to  operate.-'  By  surrendering 
the  property,  he  divests  himself  of  his  lien;^  for  his  lieu 
is  not  an  estate  or  interest  in  the  thing;  the  property  be- 
ing still  in  the  bailor,  it  is  neither  a  jus  ad  rem,  nor  a  jus 
in  JT,  but  a  simple  right  to  retain  the  thing  till  the  lien 
thereon  be  discharged.''  At  common  law  there  is  no 
lien  for  work  done  or  materials  furnished  in  building  a 
house,  or  other  edifice,  upon  real  estate  owned  by  an- 
other, because  the  bailee  loses  possession  of  the  thing 
as  it  becomes  immediately  attached  to  the  soil  and  a 
part  of  the  premises;  nor  had  an  employe  or  workman 
of  a  contractor  in  any  case,  for  the  possession,  if  any, 
was  that  of  the  master."  But  under  the  statutes  of 
many  of  the  States,  such  a  lien  is  given  for 
the  value  of  the  labor  and  materials  furnished 
and  bestowed  in  the  repair  and  erection  of 
buildings,    or    for    the    value    of    the    labor    of    nie- 


ISiirKentu.  Tshor,  fiS  \.  II.  2s7;  Hoi- 
lingsworlli  V.  Dow,  10  I'ick.  '228;  Ixjwu 
V.  Woixls,  'M  I'ao.  Kop.  95?  (Ciil.). 

2  E(hv.  llail.  SHB. 

3  E(l» .  Itail.  .H03 ;  Mclntyrt!  f.  Carver, 
2  \V.  *  S.  Xfi;  W  Am.  Dec.  filil;  Hi)llinps- 
wortli  f.  Dow,  ID  Pick.  2'J«;  Wrifjlitt-. 
TeiTj-,  2.!  Fill,  ino;  2  South.  Kep.  fi; 
StilliiiBS  r.  (iil)sun,  CS  N.  H.  1;  Jenkins 
f.  Kiihelherger,  4  Watts,  121;  2H  Am. 
Dee.  G'Jl;  Jordan  r.  Jainis,  6  Ohio  88; 
Ileineinan  r.   U.   Co.  51  Iowa  3.%. 

4  Jones  V.  I'earle,  Str.  651!;  lKast4; 
Oakes  f.  Moore,  24  Me.  214;  41  Am.  Dee. 
879;  Stiller  v.  Marston,  H5  Sle.  l,'):!;  5fi 
Am.  Dec.  C94;  Itigelow  v.  Heaton,  4 
Denio.  49t>;  Hears  r.  Wills,  4  Allen  212; 
Bailej  f.  guinl,  22  Vt.  474. 

66 


'Menny  v.  Head,  1  Mason,  .^10; 
Sensenbrenner  .'.  Alatthcws,  48  Wis. 
2M;  .llAm.  Rep.  WW;  3  N.  W.  Itcp.  SD-J; 
Smith  V.  tireenup,  GO  Mich,  fil;  Ames  r. 
I'aliiicr,  42  Me.  197;  r.G  Am.  Dee.  271. 
Jtitfr  where  possession  is  obtained  by 
the  bailor  without  the  bailee's  consent. 
Tartiiilge  r.  Dartmonlh  College,  fi  N.  H. 
28«;  or  thronghfrantl.  Manning f.  Hol- 
lcnbeek,2"  Wis.  2n2;  Higelow  r.  Ileaton, 
l«  Hill  iS;  4  Denio.  4!»6. 

«  Kilw.  Hail.  Hm;  Mclntyre  v.  Carver,  2 
W.  &  S.  v'>2;  .t7  Am.  Deo.  579;  Ilollings- 
worth  f.  Dow.,  19  I'ick  228;  Wright  r. 
Terry,  'At  Kla.  100;  2  South.  Kep.  6;  King 
V.  Indian  Orchard  Canal  Co.,  11  Cnsh.  2;tl. 


^r=smmm 


■Mi 


ClI.  III.] 


THE   GENERAL   PKINOIPLES. 


§20 


clianics  employed  by  a  contractor,  to  the  extent  of 
the  owner  and  employer's  interest  in  the  premises. 
In  order  to  perfect  this  lien,  it  is  necessary  to  follow 
strictly  the  provisions  of  the  statute  authorizing  it' 

The  lien  exists  equally,  whether  there  be  an  agree- 
ment to  pay  a  stipulated  price,  or  only  an  implied  con- 
tract to  pay  a  reasonable  price,  unless  there  be  a  future 
time  of  payment  fixed.  In  that  case  the  special  agree- 
ment is  inconsistent  with  the  right  of  lien,  and  de* 
stroys  it.- 

The  lien  is  defeated  by  the  tender  to  the  bailee  of 
his  proper  charges,  or  by  the  bailee  when  demand  is 
made  upon  him  for  the  goods,  placing  his  refusal  to 
make  delivery  upon  a  ground  other  than  that  of  non- 
payment of  the  charges.''  The  bailee,  during  the  time 
he  retains  the  goods  for  his  charge,  remains  a  bailee 
for  hire,  charged  with  the  duty  of  preserving  them 
with  reasonable  care."* 

The  bailee's  lien  upon  the  goods  does  not  clothe  him 
with  power  to  sell  them  for  the  satisfaction  of  his 
charges;"'  his  remedy  to  enforce  his  lien  is  by  an  action 
in  the  nature  of  a  bill  in  equity."     The  right  is  simply 


I 


llJ 


^^ 


1 


1  1  Stim.  Am.  St.  I,.  VM)etteq. 

2  Ililti'liins  f.  Olcott.  4  Vt.  n4'.);  2*  Aiir 
Vi'f.  r,:U;  Mathewsf.SclUTS,«r,I'ii.St.4f>fi; 
27  Am.  Ucp.  723;  Itannii  i:  riiclps,  7  Ind. 
21;fi.'lAm.  Doc.  410;  ("iimmiiigr.  Ilnrris, 
3  Vt.  244;  HurOick  f.  Murrny,  3  Vt.  302; 
Wdi.li'n  Maiifjr.  Co.  r.  Uuntlcy,  8  N.  11. 
441;  Trust  r.  Tirsson,  1  Hill.  202;  Wik'S 
LainiilirinK  Co.  f.  Iluhio,  106  N.  Y.  234; 
B9  Am.  Uop.  4%;  U  N.  E.  Urjp.  500; 
Pinnty  v.  Wells,  10  Conn.  104;  Chandler 
r.  liciacn,  18  .Johns  1^7;  ?» Am.  Dec.  19.1; 
Ilalu  V.  IJarrett,  2«  111.  li«;  7'J  Am.  Dec. 
.367. 

3  Saltns  f.  Kverett,  20  Wenil.  267;  Kv- 
orett  f.  Cofflii,  6  Wend.  fiOS;  Ilolbrook  r. 
WiRht,  24  Wend.  169;  Ilcan  v.  Itolton,  3 
Phila.  87 ;  Picquet  f.  JleKay ,  2  Itlockf.  465 ; 
Uannav.  Phelps,  7  Ind.  21 ;  63  Am.  Dec. 


410;  Dows.  r.  Morweood,  10  Uarb.  183; 
Thatchcrr.  IIarliiii,2  Iloust,  178;  Hamil- 
ton r.  McLaughlin,  lift  Slass.  20;  12  N.  K. 
Hep.  424. 

■»  St.  Ixmis&U.  Co.  f.  Flanagan,  2;j  III. 
(A pp.)  4H0. 

1  Pothouler  v.  Dawson,  Holt  N.  P.  .387 ; 
Uaukin  r.  Packet  Co.,  9  Heisk.  564;  Case 
t>.  Fogg,  40  Mo.  44;  Chandler  v.  Helden, 
18  .Johns  157;  Hickman  v.  Thomas,  10 
Ala.  600;  Hunt  r.  Haskell,  20  Me.  H:V.); 
U'cky  r.  McDerniott,8  S.  &  U.500;  Cnim- 
backer  v.  Tucker,  4  Kng.  (Ark.)  .365; 
Doane  r.  Uussell,  3  (iray  .382;  2  Kent 
Com.  642;  Itriggs  f.  U.  Co.,  6  Allen  246; 
Grace  f.  Palmer,  8  Wheat.  665. 

8Kdw.  Hail.  414;  Fox  v.  McGregor,  II 
Itarb.  41. 

87 


•   tl 


?27 


THE   GKNEUAL  IMtlNCIl'LES. 


[PAUT  I. 


u  right  to  hold,  and  not  an  interest  in  tlio  property  such 
as  a  pledgee  has.  The  coninion  law  means  of  enforcing 
this  right  being  somewhat  imperfect  in  this  respect,' 
it  is  not  strange  that  by  statnte  in  some  of  the  States, 
carriers  and  other  bailees  hav*'  been  given  power  to  sell 
for  unpaid  charges  the  goods  in  (heir  hands,  after  r<'a- 
sonable  notice.- 


§  27.  The  Bailee's  Lieu  Genersilly.— Every  bailee 
for  hire,  who  by  his  labor  and  skill  has  imparted  an 
additional  value  to  the  goods,  has  a  lien  upon  the  prop- 
erty for  his  reasonable  charges;  this  iuchnles  all  such 
manufacturers,  mechanics,  tradesmen  and  laborers  us 
receive  proi)erty  for  the  purj>ose  of  I'epairing,  or  other- 
wise improving  its  condition.^ 

The  lien  at  common  law  attaches  oidy  where  the 
property  is  improved  in  value  by  the  labor  and  ser- 
vices of  the  bailee,'  and  therefore,  an  agister'  or  a 
liverystable  keeper"  had  no  lien  «)n  tlu'  animal  for  its 
keej),  though  one  to  whom  an  animal  was  delivered 
either  to  train  or  cure,  had."  A  warehouseman,  iiow- 
ever,  has  a  lien  for  his  charges  upon  the  j)roperty  in 


J  See  Doaiu-  r.  Uiissill.  :t  (iniy  Hsr,;  but 
SOP  Tnisti't'S  t'.  nritflildii  Stock  Vaiil>, 'J7 
Ohio  St.  4.i5. 

2  Sen  2  Stilil.  Stilt.  L.  §  ><>^iX 

•lUntchiiis  V.  Olcntt,  4  Vt.  .IW; '24  Am. 
Doc.Gri;  Wliito  1-.  Smith,  44  N.  .1.(1..) 
1(«;  4.1  Am.  Itop.  :i«7;  Ilaniiii  r.  I'hclps, 
7Iml.  21;  C:t  Am.  lice.  410;  Wilson  r. 
Martin,  40  N.  U.  HS;  .Mathias  i-.  Si-llcrs, 
SGI'a.  St.  4H0;  27  Am.  Uop.  7'.'.t;  Towii- 
spnil  f.  Newell,  114  I'iik.  STJ;  Moon-  r. 
nitchcock,  4  Wend.  372;  Arians  r.  Unrk- 
U'j-,C.5  Wi.s.  21',;  5ij  Am.  Urp.  (ill ;  26  X.  \V. 
Rep.  1S.S;  I'ion'i'  v.  Swci't,  3;t  I'a.  St.  l.')l ; 
Kttstf.  Ki'rpiison,fl'.tIn(l.  172;  Sliawi-.  Krr- 
Ktison,  7S  Iml.  M4.  Morgan  c.  Congilon, 
4  N.  V.  5.'>2. 

4  Whiter.  Smith,  44  N'.  .T.  (L.)  105;  4:t 
Am.  Ki'p.  :n.    \  private  currier  has  no 

58 


lien.     I'lillerc.  I'.raclle),  J.')  Ca.  >t.  120. 

•'' .laeksdii  r.  Ciimmin^'s,  rt  M.  \.  W.  .')I2; 
('MiniiiinK- V.  l(arri>,  ;(  \  t.  241;  2.1  .\m. 
J>cc.  201'.;  (Jrinnell  v.  Cook,  .'IJ  Hill  4s.'i;  i!H 
Am.  lii'C.  i;i;7;  Allen  v.  Ilain,  i;.t  Me.  .WJ  ; 
.Manney  r.  Ingram,  7S  N.  ('.  ilii;  Mc- 
Donald r.  Itennctt,  4,^  la.  4.V.. 

8.I«d>onv.  KthericlK'c,l  ('.  .t.M.  742;.Md- 
ler  f.  Marslon,  M  Me.  l,'i:!;fiti  Am.  Dec. 
f.'.il.  Hy  statnte  in  sonu'  States  sncli  liens 
are  now  /iven. 

7  llevan  c.  Waters,  H  C.  A  I".  r>20;  Korth 
r.  Simpson,  1:1  g.  1$.  W);  Towle  r.  Ray- 
mond. 5S  \.  II.  fi4 ;  Harris  r.  Woodrtiff, 
124  Mas-.  2l).'i;2r,  Am.  Uep.  G.W;  I/jril  f. 
.(ones,  24  Me.  4:0;  41  Am.  Dec.  .T.ll.  So  a 
farrier  lor  shooing  horses.  J,ord  v. 
,loaes.  Id. 


CII.  III.] 


THK    GENERAL    PUINOIPLES. 


§28 


his  bands.'  This  lion  wouhl  soem  to  bo  inconsistent 
with  that  nMiuisitc  of  a  coninion  hiw  lion,  that  the  prop- 
erty held  shall  have  been  improved  in  vahie  in  some 
way;  but  the  truth  is,  the  warehouseman's  lien  is 
founded  on  usaj^e,  repeatedly  proved  and  recognized 
until  it  has  come  to  be  considered  an  establishetl  right. - 
It  is  a  specific  lien;  but  where  merchandise  is  store<l 
in  a  warehouse,  and  jiortions  of  it  are  front  time  to 
time  delivered  out  without  the  storage  thereon  being 
I)aid,  the  warehousenuin  has  a  lien  u])on  the  portion 
left  for  the  storage  of  the  whole.'*  This  rule  is  con- 
sidered as  ]n'()moting  the  convenience  of  trade  and 
business,  without  detriment  to  the  parties  in  inteiest, 
and  without  subjecting  them  to  the  inconvenience  and 
trouble  of  dividing  up  a  single  transaction  into  as  nuiny 
parts  as  there  may  have  been  dilTerent  deliveries  of 
I)ortions  of  the  sanu'  proi)erty.'  The  factor  to  whom 
goods  are  consigned  foi-  sale  has,  by  <'Ustom,  a  gfMHU'al 
lien  upon  them  for  advances  made  or  liabilities  in- 
curred thereon,  and  also  for  his  reasonable  charges  or 
commissions,'' 

S  2S.  Joint  Bailors  and  Joint  Bailees.— Chattels 
deposited  by  several  joint  own(>rs  must  be  redelivered 
(tn  the  joint  demand  of  the  ])ersons  making  the  dejiosit, 
and  the  bailee  is  not  obliged  to  deliver  to  one  without 


f 


ml 


1  McKarliiiul  r.  WIutUt.  '.'r,  \Vrinl. 
267;  I^)W  f.  Marliii,  is  111.  '2H(i. 

2Nujlor  V.  .MiiiiKl«!8,  1  Ksp.  ur.i; 
Spoars  t'.  Hartley,  a  Ksp.  81.  lint  a 
private  person  not  a  warclioiisenian  has 
no  lien  on  a  eliattel  he  takes  to  keep,  re 
Kelly,  ;i(;st;  Alt  r.  WeiiieutnirK,  (i  ISosw. 
ITti. 

3.Sehmi<lt  r.  Hloixl,  !»  Wend.  'JGs;  24 
Am.  Dee.  U.i;  Steinnian  r.  Wilkins,  7 
W.  AS.  4Utl;    43   Am.   Dee.   M4;  re  Kelly 


IS  Ki'd.  Kep.  n.'s;  Alt  i:  W  eidenburK,  6 
Itosw.  17i;. 

*  Kdw.  Hail.  am. 

.■iltillr.  Talmer,  0  Cow.  128;  Urycc  r. 
Hrook,  21)  Wenil.  ;t(iT;  Martin  v.  I'opc,  (> 
Ala.  f>:i2;  41  Am.  Dec.  GO;  Dehlia  v.  I'opc, 
G  Ala.  C'JO;  41  Am.  l>e<'.  70;  Patterson 
r.  .Me(;aliey,  H  .Mart.  4bG;  13  Am.  Dee. 
2'.W;  Holbrook  v.  Wisht,  24  Wend.  1U9;  3« 
Am.  Dee.  GO";  Strahorn  r.  Uuiuu  Stuck 
Co..  43  111.  414 ;  02  Am.  Dec.  142. 

59 


§29 


TIIK   GENERAL   PKINCIPLES. 


[part  I. 


the  consent  of  all.'  But  if  tho  bailee  accepts  the  prop, 
erty  from  one  of  them,  by  whom,  as  well  as  by  llu' 
bailee,  it  is  treated  as  belongin<^  to  him  exclusively,  ho 
Avill  be  protected  by  a  redelivery  of  the  ftroperty  to 
him  who  bailed  it.-  Where  there  are  two  or  more  joint 
depositaries,  each  is  liable  for  the  delivery  of  the  whole 
deposit-'  And  where  several  hire  a  thing  of  another, 
each  is  liable  to  the  bailor  for  an  injury  to  it.^ 


d 


§  29.     Tcriiiiimtion  of  llie  liuiliiieiil.— The    bail- 
ment is  terminated  in  the  following  ways: 

1.  By  the  agreement  of  the  jtarties.'' 

2.  By  the  acts  of  the  parties  The  bailor,  where 
no  time  is  tixed,  may  terminate  the  bailment 
when  he  i)leases,  on  his  own  motion,"  but  where 
no  time  for  the  redelivery  of  the  bailed  article 
has  been  agreed  upon,  the  bailee  cannot  b<'  subjected 
to  an  action  or  suit  at  law  without  a  previous  demand 
having  been  made  upon  him  for  the  goods,  and  a  re- 
fusal on  his  part  to  restore  them — unless  such  demand 
is  rendered  unnecessary  by  the  bailee's  misappropria- 
tion or  other  violation  of  duty  on  his  part.^  And 
though  a  gratuitous  loan  is  revocable  at  the  will  of  the 
bailor,  yet  if  the  lender  do  so  unreasonably,  while  the 
object  of  the  bailment  is  but  partly  accomplished,  and 
actually  occasions  injury  or  loss  to  the  borrower  by  so 


1  story  nail.  §  114 ;  Harpcrr.  (ioodscll,  IS 
W.  U.  '.tr)!;  3<l  L.  J.  (}.  ]!.  ls.>;  Ilramion  v. 
Scott,  7  Kl.  &  IJl.  234;  May  r.  Harvey,  13 
East  ly";  Uand  r.  Stato  ltk.,7"  N.  C.1S2. 

2  May  V.  Uar\cy,  13  Kast  197. 

5  Story  Hail.  §  114. 

4  O  T.rienf.  IJou  i(l,2  Sp(!frs4;i,');  42Am. 
Dec.  as4. 
s  Laws.  Contr.  §  200. 

6  HowarU  f.  Uocben,  .SS  Cal.  399;  Wink- 
Icy  r.  Foyc,  33  N.  II.  171 ;  SB  Am.  Doc.  71:). 

^  Urown  V.  ('ook.  9  .lolins.  3G1 ;  Hill  v. 
Wiggins,  31  N.  U.  292 ;  Duncan  r.  Magette, 

60 


2.5TCX.  24.'i:  Nelson  r.  Kinp.  2.'>  Tcx.(i.Vi; 
ncanlslec  r.  Kichar<l<on,  11  Wend.  2."); 
West  f.  Murphy,,)  Hill  (S.  0.)  2h4;  Mc- 
Cain r.  UolTinan,  30  Ark.  428;  IMielps  r. 
IJostwiek,  22  Uarb.  314 ;  Montgomery  f. 
Kvans,  8  Ua.  17*<;  Stewart  r.  Frazicr,  5 
Ala.  114;  Jacknian  r.  Tartridgo,  21  Vt. 
B.lw;  Hosincr  f.  Clark,  2  (ireenl.  .30S;  Der- 
rick f.  Ilaker,  9  Port.  ;-«;2;  Magee  v.  Scott, 
9  Chish.  14H;  M  Am.  Dec.  49;  Negus  r. 
Simpson,  99  Mass.  388;  Uoss  v.  Clark,  27 
Mo.  549;  Morse  v.  Crawford,  17  Vt.  499;  44 
Am.  Dec.  319. 


CII.  III.] 


tup:  gknkkal  principles. 


§29 


doing,  the  latter  may  have  a  suit  for  daraagcs;  or  may 
recoup  his  damages  iu  au  adion  brouglit  against  liim 
for  retaining  the  loan  under  such  circumstances.'  The 
owner  of  a  pair  of  horses,  for  examph>,  lends  them  to 
his  neighbor  to  carry  a  load  of  provisions  to  a  partic- 
ular market;  he  cannot  on  the  way,  meet  him  and  de- 
mand the  immediate  possession  of  the  team,  leaving 
the  borrower  lo  sustain  the  injury  resulting  from  such 
iin  abrupt  and  unexpe«'(c<l  termination  of  the  lojin.- 

The  bailee,  where  he  has  not  stipulated  to  keep  the 
goods  for  any  i>articular  length  of  time,  may  free  him- 
self from  responsibility  at  his  option,  by  restoring  them 
to  the  bailor  or  notifying  him  to  reclaim  them;''  when, 
if  he  <loes  not  do  so,  the  bailee  may  store  them  at  the 
bailor's  risk  and  chargf'.^  Where,  however,  the  bail- 
ment is  one  to  do  a  certain  work  on  or  with  the  chattel, 
or  to  hold  it  for  a  certain  time,  neither  party  can  ter- 
minate the  relation  without  the  consent  of  the  other 
till  that  is  done,  otherwise  he  will  be  liable  in  damages 
for  a  breach  of  his  contract."' 

X  liy  the  expiration  of  the  time  for  which  the  bail- 
ment was  to  continue  or  the  accomplishment  of  the 
j)urpose  for  which  the  bailment  was  made,  or  by  a  de- 
livery over  of  the  bailed  chattel  iu  accordance  with  the 
trust." 

4.  By  the  bailee  transferring  or  otherwise  violating 
his  duty  in  regard  to  the  things  bailed,  or  d(>aling  with 
them  in  any  way  not  contemplated  by  the  contract." 


1  story  Bail.  §  riT ;  sclioiil.  Hail.  H7. 
!  Kdw.  Hail.  144. 

3  IJoiilstonr.  .McCl.'llaiKl,  2  K.  1).  Smith 
CO. 

4  VnW  V.  BrinrkiThoflf,  7  Daly  4.'i. 
s  Sclioul.  Hail.  G(>. 

«  Story  Hail.  §  10;t;  Hati-s  i'.  Stanton,  1 
Pner.  79;Chattaliooihe  Hk.  v.  Schley,  M 
Ga.  36'.>. 


7  Kingf.  Hates,  r>:  X.  H.  446;  Mott  f. 
I'ettit,  1  N.  J.  (L.)  'JOHU'iTimp  V.  Mitchell, 
:h4  Miss.  449;  Wilkinson  f.  Verity.  L.  U.  C 
V.  V.  200;  Jenkins  1-.  Hacon.ltl  Mass.  H'S; 
1.1  Am.  Itep.  33;  Kuwing  r.  Munly,  49  N. 
Y.  192;  10  Am.  Uep.  34G;  Stewart  f.  Fra- 
zier,  5  .\la.  114;  l>unla|>  i:  (Jleasun,  16 
Mieh.  15H;  93  Am.  Dee.  231. 

61 


i 


§20 


iin;  (iKNKKAr,  i-kinciplks. 


[I'AKT  I. 


5.  By  incapacity  of  one  of  the  parties,  as  for  ex- 
ample,  niaiTia-;i',  If  liio  party  be  a  ft'inalo;  or  insanity 
or  idiocy.' 

().  I?v  tlic  death  of  one  of  the  parlies.  The  deatli 
of  tlie  baih'o  is  said  to  terminate  the  bailment,  and 
generally,  such  an  event  would  give  the  bailor  a  right 
at  once  to  reclaim  his  property.-  It  seems,  hoAVOvei', 
that  where  the  bailment  has  been  partly  oxocutod,  the 
personal  representatives  of  the  bailee  may  bo  recjuired 
to  comjilete  it.-'  Where  th<'  bailor  dies,  the  authority 
or  trust  reposed  in  the  bailee  is  ended;  like  in  any 
agency  the  power  is  revoked  by  the  death  of  the  prin- 
cipal.* 

7.  By  the  bankruptcy  of  the  bailor.  ''Where  the 
bailee  is  to  execute  a  mere  authority,  his  own  bank- 
ruptcy will  not  necessarily  dissolve  it,  although  it  may, 
if  the  act  to  1)«  done  involve  theex])en(liture  of  money.'"' 

8.  By  any  event  which  totally  destroys  the  chattel 
bailed,  without  any  fault  on  the  part  of  the  bailee;  if 
destroyed  by  his  fault,  he  is  answerable  for  the  dam- 
ages, and  if  he  is  a  hirer,  probably  also  for  the  hiri>  of 
the  chattel  during  his  term." 

9.  By  the  bailee  becoming  th(»  purchaser  of  the 
things  bailed;  but  it  will  not  be  alTected  by  a  sale  made 
by  the  bailor  of  his  reversionary  interest  to  a  third 
person,  for  the  reason  that  he  can  convey  no  greater 
interest  than  he  possesses,  and  has  not,  during  the  bail- 
ment, a  present  right  of  jjossession. 

10.  The  statute  of  limitations  does  not  run  against 
the  bailor's  right  to  recover  the  bailed  chattel,  so  long 


1  K<hv.  IJail.  120. 
5  Smili'y  V.  Allun,  I.I  Alli'n  4C'). 
•1  Storj"  on  Biiilincnts,  sec.  202;  2  Kent's 
(;oni.  r,4;t,  r,44 ;  SclioiiU'f  on  li.iilini'nls,  71. 

*  I..i\vs.  t'lntr.  §  202;  Story  Hail.  §  2(l,"i;  2 
Ki'iit.Coni.  CM. 

*  K(hv.  IJail.  124;  I.iiw-;.  Contr.  §  2U2. 

62 


.  "  It  sooms  it  is  not  the  duty  of  the 
bnilen  to  pursnu  tlie  jiroperty  takon  onl 
of  his  hands  without  any  otnission  oi 
duly  on  his  part;  it  is  cnonfjth  if  he  notify 
llii'liajlor.  Sessions  r.  U.  Co.,  Ii;(iruyl32; 
Smith  f.  Frost,  fil  Cia.  S.'tO. 


CII.  III.] 


TIIK   OKNKUAL    I'UINCIPLKS. 


§2'J 


jis  tho  baihiicnt  lasts,  and  lias  not  boon  jmt  an  on«l  to 
by  the  bailee  refusing;  to  rctui-n  the  property  on  ^lv- 
niand,  or  otherwise  denying  the  trust  and  clainiinj;-  the 
(battel  as  his  own.  This  is  the  rule  as  to  trustees  j;en- 
erally,  an<l  it  apj>lies,  also,  to  baile<'s.  IJut  in  equity  the 
bailor's  elaiiu  would,  in  eases  of  a  gn^at  lapse  of  tinu', 
be  barred  upon  that  familiar  principle  of  equity  that  a 
stale  claim  will  raise  the  i»resnini»tion  that  the  prop- 
erty has  at  some  previous  lim«'  been  transfei-red  to  the 
bailee  by  a}j;reenient  of  the  parties.' 


1  Sec  UiMZt'iistcin  r.    Maniimnlt,  M  N. 
W.  Kip.  ftui;  (lu.).    .Sof  yoit,  i  7u, 


03 


I 


CII. 


CHAPTER    IV. 

TIIK  BAILMENT  FOR  TIIK   BAILOR'S   BENEFIT. 

Section  .SO.  The  Deposit  aiiJ  Mandate. 

31.  Cousuk'i-ation  Must  be  Absolutely  Absent. 

32.  Any  Indirect  Benelit  Sullicient. 
3;?.  Liability  of  Gratuitous  Bailees. 

M.    Effect  of  Bailee's  I'revious  l{e(iuest. 
3r>.     Skilled  Uailoes. 


§  30.  The  Deposit  and  3Ian(late. — The  bailments 
for  the  sole  benefit  of  the  bailor  are  the  dcpo.sitiiiii  and 
tlie  maudatiim  of  the  civil  law.  The  difference  between 
the  two  is  slight,  and  does  not  concern  the  nature  of 
the  contract,  but  only  +he  mode  of  iis  performance,  a 
deposit  being  the  delivery  of  chattels  to  keep  and  re- 
turn;* a  mandate,  the  delivery  of  chattels  to  carry  or 
do  someth.'Uijf  about  them- — the  keeping,  carrying, 
etc.,  being  in  both  cases  gratuitous,  that  is,  without 
pay  or  reward.  The  modern  cases  on  the  subject  of  do 
posit  and  mandate  are  not  numerous,  both  for  the  rea- 
son given  by  Sir  William  Jones,  that  it  is  an  uncommon 
thing  to  undertake  an  office  of  troubl  without  com- 
pcaisation,''  and  for  those  of  Judge  S^tory,*  that  the  fa- 


1  A  cnstf/mer  of  a  b•^nk  loaves  bonds 
and  oihor  securiui  ■•  ml  valuablfs  in  the 
bank  safo,  the  b:iuk  '•fci  wing  no  ;):iy  for 
the  scrviC(!.  This  is  a  'cnos  ,.  e.  riaviu 
r.  Konsinttou  Nationn.  IJaiik,  ,.  /a.  8t. 
9.5;  First  Nitioual  IJank  r.  (;ialiun,',79  I'a. 
St.  106;  21  \y:.  Uop.  49;  Scott  i-.  Xat.  }lk., 
72  Pa.  St.  47S;  i:^  Am.  IJoi,.  711 ;  I.anc'astor 
Co.Hk.  r  Smi.'h,  iii  I'a.  .St.  47;  see  Connor 
V.  Winton,  8  inl.  .Sl.l;  (i'j  Am.  Dec.  7«1; 
Rozollc  r.  Uhodts,  iiG  I'a.  St.  129;  2  Am. 
St.  Uep.  691 ;  9  All.  Uep.  129. 

64 


-'  A  nndcrtaki's  to  can-y  pratis  a  thinu 
for  li  from  V  to  1).  This  is  a  niamlatc 
GnllcdKcr.  Howard, 2H  Ark.  til ;  FerRUSOU 
r.  Porter,  8  Fla.  27.  \  pnrchases  for  II  ii 
draft  to  transmit  for  him  to  another 
pl.Tce.  A  is  not  to  be  paid  tor  bis  pains. 
This  is  a  mandate:  Kddy  f.  Livingston, 
:(.'■>  Mo.  4H7 ;  W  Am.  Dec.  122. 

:'  .loncs  Rail.  6'i, 

4  Story  Bail.  21S. 


CII.  IV.]     B\ILMICNT  FOli  TTIK  n.VILOU's    IJKXKFTT.  jj  31 

cilities  of  niodcru  times  to  obtain  nil  kinds  of  sorvico, 
ivndor  it  nnnccossary  to  bnrdcn  friends  with  llio  cxo- 
cntion  of  snch  tnists,  jind  that  persons  i'.re  nnwilliuj; 
to  make  their  friends  responsible  for  a  merltorions, 
thon<;h  ne<;li}i('nt,  kindness.' 


$^  31.    Consideration  Must  be  Absolutely  Absent. 

— The  slndenl  of  the  law  of  Contract  will  have  ob- 
served how,  in  the  eye  of  the  law,  the  most  triflinj;  ben 
etit  on  the  one  hand,  or  detriment  nnon  the  other,  will 
raise  a  snllicient  consideration  to  su]»port  a  j)roniis<'.- 
And  the  same  considei'alion  will  tnrn  a  j;i'atiiiloiis  into 
a  nnitual  benetit  bailment.  In  order  I'o  make  the  bail- 
ment one  for  the  sole  benetit  of  '. ne  bailor,  no  benelit 
to  the  bailee,  present  or  fntni",  actnal  or  contin'^ent, 
certain  or  uncertain,  direct  or  indii-cct,  musi  arise.' 
The  presum})tion  always  is  that  scrvicf^s  rendered  by 
one  for  another  a  for  hire  and  not  {.gratuitous,'  and 
therefore,  tlie  fact  I  hat  ncthlnfj  was  said  about  j)ay  will 
not  make  the  iiailment  a  <j;ratuitous  one,  provided  the 
bailee  liad  a  rij^ht  to  char<;(*,  and  ii  was  t!ie  custo?n  to 
do  so  in  similar  cases.'^  It  is  ivv:>t)ablv  onlv  where  a 
nmn  undertakes  a  bailment  duty  Tor  a  near  relative  or 
friend,  where  the  doinj;  of  the  thin;;  puts  liim  to  little 
trouble,  and  recpiires  little  time  or  skill,  and  is  quite 
outside  his  ordinary  <-allin^  or  o<*cupalion,  that  a  pre- 


1  4  I,aws.  niKht^;,  Ufin.  Ji.  I'r.,  §  ITih;. 

2  Sfc  Uiws.  Coiitr.,  §!);i. 

•■1  NuwhiiU  r.  I'liigo,  10  ;;i'ay  .'Hid;  Omli-r- 
l;irk  r.  Contral  Nut.  Itniik,  :>:>  N.  V.St. 
IN'Ii.  127;  4  N.  V.  S.  Til;  Ilollistcr  r.  Ci'ii- 
trill  Nat.  Hank,  22  X.  V.  St.  Ki'p.  i:il,4  N. 
Y.  S.  737;  Ki'llar  v.  Rlioails,  'Kl  I'a.  St. 
ni,^;  KO  Am.  Dec.  B.W;  (Ji-ay  v.  .Mi'iiiam. 
3fiN.  E.  Kci).  810(111.). 

4  Laws.  Contr.  § :«. 

6 1'attisoii     f.   Syrac'isc    Nat.    HanU,   4 


Tliomp.  *  r.  "  ;  MariuiT  v.  Sinitli,  5 
ll^'i^k.  20.'t;  '.irtlanil  i:  Moiit^roiiict y,  1 
Swan,4.')2;  soi'oiid  N.'it.  Itauk  r.  Ofi'nii 
Nat.  P.ank,  11  Illatrhf.  ;!r,2;l{ca  i:  T.-ottcr, 
2i;  (Jratt.'ix'i;  Swaitz  r.  IloiistT,  10  Week. 
Ndtiv-;  4.14.  Htit  l)ia»  tlio  bailii'  iliil  or 
(!i(l  not  cliaiTi^  ill  oiui  ca.^i'  is  no  cvnli'iici' 
<if  wlictliL'i'  111'  itiil  or  iliil  not  intrii'l  to  in 
anotlior.  l-oboustoin  r  I'riti-lii'tt,  h  Ka.s. 
2i:i. 

06 


I 


§  32  B.VILMKNT  FOK  THE  BAILOR'S   BENEFIT.      [PART  I. 

sumption  arises  that  the  service  is  intended  to  be  gra- 
tuitous.' 

In  other  cases,  the  circumstances  must  show  that  no 
char«;('  was  intended  to  be  made  or  paid,"  else  a  man 
who  liad  been  en^^ajj^ed  in  a  trust  service  mi<;lit  escape 
liability  for  its  ne«;lif;ent  execution,  at  no  more  expense 
to  him  than  the  voluntarv  waiver  of  his  expected  com- 
pensation for  a  faithful  execution— a  proceeding'  which 
the  law  could  scarcely  countenance.  Where  it  is  clear, 
however,  that  the  bailee  neither  expected  nor  received 
any  tliiu-,^  of  value  for  his  pains,  the  bailuH'ut  is  a  gra- 
tuitous one.'' 

§  32.     Any  Tndireet  Beiient  Sufficient.  —  Three 

modern  cases  will  illustrate  this.  In  England,  a  car- 
rier, being  also  a  wharting''v,  received  into  his  ware- 
house, goods  of  the  plaintilT,  on  the  triias  that  they 
should  be  conveyed  by  his  barges  to  Loi  don,  whea  the 
plaintiff  should  direct,  at  the  usual  fr»  ight,  and  that 
in  the  meantime  they  should  be  kept  b  •  him  without 
charge  for  wairehousing.  In  an  action  for  not  k(H']>ing 
the  goods  safely,  it  was  held  that  he  was  not  a  gratui- 
tous bailee.'  Here  it  could  hardly  be  denied  that  the 
agreement  not  to  charge  for  storage  entered  into  the 
whole  contract  of  service,  and  was  part  of  it.  In  Mas- 
sachusetts a  box  was  left  at  A's  licpior  store  by  an  ex- 
pressman. A  received  no  compensation  for  the  use  of 
his  store  by  expn'ssmen  exce]>t  the  advantage  in  their 
bringing  him  business,  but  the  court  ruled  that  A  was 


JSchonl.  Hiiil.  ri;    Kurt    v.    Unvc,    5 
Iml.  l.il;    Liifimn'hi'    Xavijfation  ('o.  v. 
Cullms,  Vi  I.a.  Ami.  117.     I!ut  sci.  Kimih- 
eloc  f.  I'riosI,  H',)  Mo.  240;  Bn  .Vin,  Ucp.  ii7 
I  S.  W.  Uep.  2;«i. 

2  Till!    hiiilfc's   .si'iTot  ptirpiKi'    not    Id 
chiirgu   la   uiimaliTial   il   thu  bailuro.v- 


piM'tod  to  pay.  Second  Nat.  IJk.  v.  Ocean 
I.at.  Hk.,  U  IJlatf^if.  mx 

:' Minor  f.  U.0o.  19\Vis.M;88Am.  JJoc. 
fiTO;  Kta  V.  Triittor,  20  (irntt.  BWi; 
Laliinnlii!  Niiv.  t;o.  r.  Collins,  12  J.iu 
Ann.  l\'X 

<  Wliito  c.  Uuinphri'y,  11  Q.  U.  43. 


*. 


I 


-I  Jiy.iH ti -^ MmuvM-K. ' J 


CII.  IV.]     BAILMENT  FOU  THE  BAILOR'S    BENEFIT. 


§32 


a  bailee  for  hire  of  the  box,*  saying:  "A  person  becomes 
a  bailee  for  hire  when  he  takes  property  into  his  care 
and  custody  for  a  compensation.  The  nature  and 
amount  of  the  compensation  are  immaterial.  The  law 
will  not  inquire  into  its  sufficiency  or  the  certainty  of 
its  being  realized  by  the  bailee.  The  real  question  is, 
Was  the  contract  made  for  a  consideration?  If  so, 
then  it  was  a  locatum,  and  not  a  (Icpositinii,  and  the  de- 
fendants were  liable  for  a  want  of  ordinary  care.  The 
general  rule  as  to  the  consideration  of  a  contract  is 
well  understood,  and  is  the  same  in  case  of  bailments 
as  in  all  other  contracts.  The  law  does  not  undertake 
to  determine  the  adequacy  of  a  consideration.  That  is 
left  to  the  parties,  who  are  the  sole  judges  of  the  bene- 
fits or  advautages  to  be  derived  from  their  contracts. 
It  is  sufficient  if  the  consideration  be  of  some  value, 
though  slight,  or  of  a  nature  which  may  inure  to  the 
benefit  of  the  party  making  the  promise."-  In  Indiana, 
the  bailment  was  heUl  one  for  hiri'  where  the  plaintiff, 
in  response  to  an  invitation,  sent  his  gun  to  an  agricul- 
tural fair  to  exhibit.  "The  case  made  by  the  complaint 
is  one  of  bailment.  The  b'\ilment  was  not  a  gratuitous 
one,  for  the  reason  that  the  exhibition  of  the  gun,  in 
response*  to  the  invitatioii  contained  in  the  advertise- 
ment of  the  api»ellant,  constituted  a  consideration  for 
the  undertaking.  It  may  be  < '"ue  that  both  piirties  de- 
rived a  benefit,  but  this  did  not  strip  the  contract  of  its 
character — that  of  a  l..:ilment  for  reward.  The  reward 
was  not,  it  is  true,  in  money,  bvit  it  was,  neytnthelec  •,  a 
reward  in  the  form  (^f  an  act  |)erform<Ml  at  the  request 
of  the  bailee.  An  association  which  invites  ]>ersons  to 
supply  articles  to  enable  it  to  cou<luct  an  exhibition, 


1  Nfwhalt  c.  Pai(fp,  10  Gray,  366. 

2  CitiiiKUaiK'li  r.  IJrook-:,  10  Ad.  4  K. 
320;  2  JVrry  *  I».    484;  I,iiwri;ncc  f.  Mc- 


Ciilmont,  .'   ildw.  45'J;  Uubbnrd  v.  Cool- 
i<lgc,  1  Mctc.  92. 


§  33  BAILMENT  FOK  TIIK  BAILOR'S   BENEFIT.     [PART  I. 

receives  some  consideration  from  the  person  who  re- 
sponds to  ils  invitution  by  phicin«,'  articles  in  its  care 
for  exhibition."' 

§  33.     Liability  of  Gratuitous   Bailees.  —  It  is 

usually  laid  down  in  the  cases  Avithout  more  that  a 
bailee  without  reward,  whether  tlie  bailment  be  a  de- 
j)Osit'-  or  a  mandate,'  is  not  liabh'  for  a  loss  of  or  injury 
to  the  baiifii  arti(  le  unless  it  was  the  result  of  jatoss 
ne<;lij;ence  on  his  part.*     Such  a  statement,  however, 


:i*i»;. 


"n'-^::. 


1  Vipo  Atrric.  ."■'•«'  i'-  liruuilli'l,  Wi 
\w\.W<;  5.!  Am.  U.'p.  rw')7;  1  N.  K.  Ucp. 
:!'*'J,  ami  -ii-c  Smitli  v.  !,ilir;ir  lloiml,  6!t 
N.  W.  lii'p.  071)   (Minn.). 

•J  Wi<rr  r.  Cliixli'v,  :i:i  Mis-;.  TilV;  ^fari- 
norr.  Smilli,.'!  Ucisk.  »k1;  Dunn  r.  llr.in- 
niT,  i:i  IjU.  Ann.  4.'ii,  Maury  r.  ( 'oyli',  :M 
Md.  I'.l.'i;  Knowlcs  V.  K.  II.  Co.  ;WMi'.  .V>; 
t;i  Am.  l>iM'.  2:U ;  (irccn  r.  IJnrlianl,  27 
Ind.  4s:i;  Dait  v.  \m\\ ,  .'>  Inil.  i:tl;  liiblin 
McMnllcn,  I,.  R.  'l  1'.  C.  :)17;  K<lsoil  f. 
Weston,  7  Cow.  2'n;  .Smith  i'.  Kirst  Nat. 
Hank,  VJ  Ma-<.  (W.'i;  'M  Am.  Dec  f>li;  He 
rtavcn  r.  Kin^inKt""  Hank,  HI  I'a.  .^si. '.tt ; 
Kii^t  Nat.  Hank  r.  (.iMliani,  7'.l  I'a,  St.  100; 
21  Am.  K<'|i.  4.1;  Scott  v.  Nat.  P.auk,  72 
I'lu  St.  47'<;  l.t  .\m.  Uc'p.  711;  ljinia-.lfr 
Co.  Hank  v.  Sniilli,  f,2  I'a.  St.  47;  Cliast!  v. 
.Mabcny,,'!  Hair.  (Dfl.)  V*\;  Don^'lu'rty 
f.  I'osi'fjati',  ^t  Iowa,  n>f;  Mechanics'  Hank 
f.  (iorilon,  5  I.ii.  .\tiii.  (in";  tirccn  r.  Ilol- 
lini,'Sworth,ri  Dana,  17:!;  'a  .\m.  Dec.  il"!!); 
Hills  c.  D.inicls,  1.')  I«i.  Ann.  2s.i;  .Soilow- 
bky  f.  .Ml  Karlanil,  .1  Dana,  2U.');  Spouiiv-r 
r.  Matloim,  40  Vt.  .-tiH);'.!!  Am.  Deo.  ;W); 
Montealh  r  llissell,  Wri^'ht,  411;  McKay 
t'.  Uamhliii,  411  Miss.  J72;  CarriiiKton  f. 
Fieklin,  ,t2  Ciratt.  070;  Danville  Hank  f. 
Wadilill,  31  (initt.  4ii'.l;  Krunnenhiir^ 
V.  Charman,  bO  Ind.  47,^. 

3Skelley  i'.  Kahn,  17  HI.  170;  Slorer  c. 
Gowan,  18  .Mo.  174;  Tracy  r.  Wood,  A 
Mation  132;  llland  r.  Woinack,  2 
Murph.  .37'! ;  Kdily  r.  I.ivin'jston,  :).)  .Mo. 
4N7;  b8.\m.  Dee.  122;  Lampley  f.  .Scott, 
24  .Miss.  B2H ;  Kern     f.    Karlo«  ,  15  lud.  4.2  ; 

liOhenstein  1'.  I*riichett,  H   Xan.  21.', ;   Me- 
Cuuley  r.  Davidson,   10  Minn.  41H;  M.Ti- 

nert- Smith,  .'>   Mei^k.   2li;);    (;iillei||,'e  v. 

Uowanl,  2:i,.\rk.  r,i;  FerhTi^on  v.  I'orter, 

08 


:!  Kla.  i";  Coiyar  f.  Tavlor,  1  Cold.  ;172 ; 
Kulton  f.  Ale\andei,  21  Te.v.  14H;Mc- 
Nalil)  r.  I^ckliart,  IS  ria.  4;i,">;  Cersch  r. 
QniK'Kle,.'>7  I'a.  .St.  21S;  I'erey  f.  .Mdlaii- 
don,  20  Mart.  7.'i;  .loiirdan  c.  Kecd,  1 
Iowa,  ir);  llylanile.  I'aiil,  ;«  liarli.  241  ; 
.Stanton  r.  Hell,  2  Uawks,  11,'i;  11  Am. 
Dec.  741;  Heardsleo  f.  Uiclianlson,  11 
Wenil.  2.');  2.'i  Am.  Dec.  filHl;  Moyil  r. 
West  Hranch  Hank,  15  I'a.  St., 172 ;  .W  Am. 
Dee.,  .isi ;  .lenkins  i-.  .Mollow,  I  Sneed, 
24H;  liO  ,\m.  Di'C.  1,'')4;  Connor  i-.  Wititou, 
h  Inil,  31,');  Ch")  Am.  Dec,  7.'il. 

4  Tompkiii-  e.  Saltmarsh,  14  Sei>'.  .t  R. 
27.');  Wliitney  v.  Irt-.-,  ;s  .Aid.  Ill ;  .McKay  f. 
ilanihliii,  40  .Miss.  472;  Spooner  r.  .Mat- 
toon,  '.0  Vt.  ,100;  !I4  .\m.  D.e.  ;!'.C>;  Kirst 
Nat.  Hank  r.  (tceaii  Hank,  m  N.  Y.  27M; 
r.i  Am.  K.-p.  IM  ;  (JrilUlli  c.  /ipper\viek,2S 
Ohio  St.  3S><;  Tracy  v.  Wood,  3  .M;ison  132; 
llaynie  v.  Warinn,  2'.l  Ala.  'lf<>;  Hissell«. 
U.  U.  Co.,  2'.)  Hail).  Ol,");  (iraiit  r.  Liullow, 
HDhio  St.  4H;  Needles  v.  Ilowaiil,  1  K.  D. 
Smith,  (i2;  (ireen  r,  Uollinjcswnilh,  ."i 
Dana,  173;  30  Am,  Dee.  IWO;  Coinvcll  i: 
Smith.  H  Ind.  ,'>3n;  <;iillcdu'e  r.  Ilovvanl,  23 
Ark.  i>l ;  Dart  r.  l.o\v,  .'>  Ind.  i:'l ,  ,loliiison 
V.  llcyiiold-,3  Kan.  2.')7;  llakewell  c.  Tal- 
bot, 4  Dana,  21i;;  Tudor  f.  Ix'Wis,  :i  Met. 
(Ky.)37H,  Kullon  r.  .Mexaiidi'r.  21  'V'\. 
14S;  Maury  r.Coyle,  ;t4  .Md.  23,-);  Wiser  v. 
Chesley,f)3  Mo.  ,")47;  I'attersoii  c.  .Mclver, 
'.10  N.  C.  4'.t3;  l.loyd  r.  West  Hranch  Hank, 
I.')  I'a.  .St.  172;  .')3  Am.  Dec.  :m  ;  De  Haven 
r.  Ki'ii^iiiKlon  Hank, SI  I'a.  St.  Of),  Connor 
c.  Wuiton,  H  Ind.  3ir);  C)  \m.  Dee.  'til; 
Minor  f.  U.  K.  Co.,  lit  Wis.  40;  NH.\ni.  Dec. 
G70;  Kdily  r.  LiviuKston,  a  Mo,  4h7;  HS 
Am.  Dec.  122. 


CII.  IV.]     BAILMENT  lOR  THE  BAILOU's   BENEFIT. 


§33 


alTords  littlo  aid  to  the  student  iu  the  jib.seiue  of  uii.v 
explunatlon  as  to  what  is  meant  by  "gross" — a  word, 
the  nse  of  which,  in  this  connection,  has,  as  we  liave 
already  seen,'  beeii  much  criticised.  In  an  En<i;lisli 
case,  Taunton,  J.,  said  that  j^ross  ne';ii<^ence  was  "a 
jjreat  and  exagj^crated  degiee  of  negligence,  as  distin- 
guished from  negligence  of  a  lower  degree,"-  which  is 
probably  as  accurate  a  delinition  as  can  be  framed. 
But  as  w<'  have  said  once  before,  negligence'  is  but  the 
absence  of  <  ai'e,  according  t(t  the  circumstances  of  the 
particular  case,  and  conseciuenlly,  gross  n«'gligence 
must  be  the  absence  of  a  lower  degree  of  care  than  is 
recpiired  to  constitute  negligence  of  a  less  "exagger- 
ated degree." 

To  give  to  a  jury  a  legal  test  by  wl'ich  the  particular 
facts  may  be  Judged,  some  courts  have  <l('tim'd  gross 
nt'gligence  to  be  t  he  abs»  n<-e  <»f  that  degree  ol'  care  v.hich 
the  bailee  exercises  over  his  own  pro[)erty  of  a  similar 
Iviud  in  sinular  cii'i-umstances,''  it  can  hardly  be  de- 
nied that  the  fact  that  the  bailee  has  lost  his  own 
goods  at  the  same  time,  is  very  strong  evidence  in  his 
favor,'  yet  it  is  not  conclusive,  for  it  is  to  be  remem- 
bered that  the  loss  of  his  own  gooils  nuiy  be  a  com- 
])aratively  trivial  cir.umstance  to  him,  while  the  loss 
of  the  bailed  goods  may  be  an  irreparable  injtiry  to  the 


1  Ante.  §  1 1. 

■-'  lioorniHii  r.  Iciikins, 'J  Ail.  &  K 11. '.':>( !. 

•!  \-\»U'r  r.  Ks-fx  Uk.,  1"  Mii.-;r;.  471);  !t 
Am.  D.'c.  KW;  KitzclU-  r.  Klmilf^,  110  I'a, 
St.  r..".l;  2  Am.  St.  Kci).  501;  '.t  All.  Rep. 
120:  Siory  Kail.,  kcc,-;.  '!:I,  ni,  lK:i;  Sclioiil. 
Hail.,  44  4S;  First  Nat.  Uaiik  c  (Jrahaiii. 
TO  I'a.  St.  Kill:  21  Am.  Ucp.  40;  Knowics 
f.  IS.  1{.  Co.,  ;HHMf.  :>,■>;  (it  Am.  Dec.  2:!4. 

4  I'Mw.  IJail.,  .S").  A,  a  (fi'iuTal  mi'r- 
chant,  iindiTtakfs  Vdliiiitaiily  ami  with- 
out reward  to  ciitiTa  parcM  of  gootl-^.thu 
property  of  U,  together  with  a  parcel  of 


hi<  own  "f  the  same  sort,  at  th(!  cnstom- 
lumse  fur  exportation,  but  makes  the 
entry  under  a  wron;^  denomination, 
whi'reby  both  jtareels  are  seized.  A, 
lia\  in;;  taken  'he  saim'  care  of  the  floods 
of  H  as  of  his  own,  and  nol  liaving  re- 
ceived any  rewanl,  and  no  being  of  a 
profession  or  eiuployment  which  neces- 
sarily in!|ilie'l  .skill  in  what  he  had  under- 
taken, was  not  liable  to  an  action  for  ti:() 
loss  occasioned  to  It ;  Shiclls  v.  Black- 
bnrne,  1  11.  lUack,  Lis. 

69 


§33 


BAILMENT  FOK  TIIK  BAILOR'S   BENEFIT.     [PART  I. 


bailor.'  I?.v  other  writers,  and  in  otlier  eases  it  has 
been  said  that  <;ross  negliyenee  is  the  want  of  that  eare 
which  every  man  of  <oninion  sense,  how  inattentive 
soever,  takes  of  his  own  preju'rly,-  whicli  approaches 
very  near  to  a  positive  brciicli  of  j;ood  faitli  or  frand.-' 
The  best  ci-iterion  is,  however,  the  aniuinil  af  rare 
uhiclt  gratidtoii.s  hailcts,  tinder  tlr  snmr  statr  of  aff'dir.s, 
talc  of  similar  chattrls.'  Tliat  the  same  eare  as  is  ex- 
acted of  a  i)aid  baih'c,  the  law  on^ht  not  .justly  to  re- 
qnire,  is  obvious,  for  where  a  man  trusts  his  property 
to  another  to  be  ke])t  or  carried  to  a  certain  i)lace,  he 
surely  oii^lit  to  be  satished  with  a  modilied  care  of  his 
jfoods,  as  lie  saves  the  renniiu'ration  ln'  would  have 
paid  to  a  warehouseman  or  a  ( arrier.  Aj^ain,  it  is  j^en- 
erally  understood  that  if  yctu  want  a  «;ood  article  you 
uiust  jiay  a  p)od  i)rice  for  it.  In  like  niiinner,  services 
which  are  not  to  be  i)ai(l  for  are  not  valiH'd  very  htjjfhly 
or  tliou^ht  very  much  of  by  the  majoi-ity  of  men.  "It 
seems,"  says  Mr.  llrowne,''  "to  be  a  piece  of  practical 
wisdom  to  understand  that  if  you  want  a  thiiiii;,  you 
must  pay  for  it.  It  matUrs  not  whether  it  be  talent  or 
tallow,  skill  or  skins.  Nothing;  foi'  nothiu};  is  the  rule 
of  business."  The  majority  of  men  do  not  expect  any 
cousiderabje  dejiree  of  care  to  be  exercised  over  ])rop- 
erty  under  such  circumstances,  and  it  is  safe  to  say 
that  what  they  do  not  expect  tliey  do  not  usually  ,«;et. 
And  knowinj;  this,  if  a  man  trusts  his  chattels  to  an 
unpaid  bailee,  he  cannot  ask  more  than  other  unpaid 
bailees  ^ive. 


1  nrowne  Carr.  si  'in.  Tracy  . .  Wood,  ,! 
Mason,  I'-'.  Onlh.'otli.r  Imiid  ili- always 
regarded  as  suspicious  for  a  iiaili'L-  to 
claii.i  to  have  lost  the  l)ail<'il  cliallds  ami 
to  have  SHvi'd  his  own  when  both  \>crc 
toffethcr.  Jtlaud  v.  Woiiiaik,  2  MnipU 
■JTIt. 

2  Edw.  Kail.  §  44. 

70 


■'  Kdw.  Mail.  §  (17. 

••  llrownc  f;air.  §  -in;  Tracy  r.  Wood,  8 
Mrsou,  i;(2;  Andcisoii  v.  Korscinaa, 
WriKht.flliH;  Itlaiid  t:  Woina/k,  2  .MarpK.. 
•'lT;t;  I'rcstoii  c.  I'ralhcr.  i:i7  V.  .S.  004;  11  s. 
.'.  Hep.  liij,   (iray  r.  Mtrriam,  .16  N.  K. 

Ucp.  Mid  fill.). 

»  Carr.,  |)  2X 


CI 


h 


b 


1 


CU.  IV.]     BAILMENT  FOR  THE  BAILOR'S   BENEFIT. 


§33 


Still,  the  bailor  Las  a  right  to  expect  some  eare.^  By 
his  representations,  or  his  accession  to  the  wishes  of 
his  neighbor,  the  bailee  has  led  him  to  repose  a  confi- 
dence in  him;  he  has  induced  him  to  believe,  not  only 
by  his  words,  but  by  his  acts,  in  undertaking  what  he 
promised,  that  he  Avould  exercise  some  sort  of  common 
sense  in  the  matter.  If  the  chattels  were  animals 
which  he  agreed  to  keep,  «e  would  be  bound  to  feed 
them,  for  it  would  be  ridiculous  to  imagine  that  a  man 
would  put  his  cattle  in  another's  han<is  in  order  that 
they  might  starve  to  death.  This  is  an  extreme  case, 
of  course. 

For  those  losses,  therefore,  to  which  every  man's  ov/n 
property  is  exi)osed,  such  as  b^'  larceny  or  robbery,-^ 
by  fire  or  storm,'  or  tlie  act  of  God,^  the  gratuitous 
bailee  is  not  responsible,  unless  the  loss  or  injury  arose 
through  the  omission  by  him  of  that  care  which  he  is 
called  upon  to  exercise'  I  i  one  case,  the  defendant,  a 
banker,  twice  a  year  examined  special  deposits  to 
which  K,  his  assistant  cashier,  had  access.  K  stole  a 
deposit  and  abseonded.  More  than  a  year  before,  the 
banker  was  warned  that  K  was  speculating,  but  K  was 
retaiiiwl    even  after    a  secofiid    warning  two    months 


1  Connor  I'.  Wintcm,  h  lud.  31&;  Ij6  Am. 
Uuc.  TUl. 

2  FurbiTf.  Iliinic.-i,  .T2  Minn.  105;  I'J  N. 
W.  Hep.  728;  lirst  Nat.  lik.  v.  Ocean 
l!k.,  GO  N.  Y.  2;h;  I'j  Am.  Ucp.  Ihl; 
<;il)linr.  Mc.Mnllon,  L.  U.  2  1'.  C.  ."17; 
Deiluvun  r.  KcnMn^lon  Itank,  81  l>:i. 
St.  9.");  Jenkins  v.  Motlow,  1  Siiuod, 
24S;GO  .\m.  Doc.  154;  Tancil  v.  Seuto  i,  2S 
Liratt.  601;  2t).\in.  Kt'p.  M);  .S',lK'rni''r  i: 
NiMira'h,  54  Mil.  4;il ;  .Tj  Ain.  Ui  p.  Hit"; 
L<'VT  f.  Uorpcron,  20  La.  .\nn.  2'.iO;  Scott 
f.  Hank,  72  I'a.  St.  471;  i:<  Am.  Uop.  7ii; 
Kostor  V.  Hank,  17  Mass.  47'.t;  '.)  Am.  Doc. 
ltj«;  Sm.th  V.  Hank,  9<)  Mass.  605;  !t7 
Am.  Doc.  59;  Davis  i:  tiay,  141  Mass.  B:n ; 
6N.  K.  Kop.  549;  Uoa  r.  Simmons,  141 
Mass.  561;   0  N.   K.  Ilep.  699;   Glover  t: 


llurbridge,  27  S.  C.  .iOQ ;  Metzger  r.  Frank- 
lin Hk.,  U!)  Iml.  ,S.V,i;  20  N.  K.  Hop.  720; 
Spoouer  V.  Mattoon,  40  Vt.  ,S00;  74  Am. 
Doc.  .fito. 

3  Moin  r.  West,  Charlt.  170. 

4  La  Hordo  r.  InKrahan,  1  \.  M.  419. 

»  (.;ot!gs  r.  Hom.iril,  2  L:i.  i  ly  907; 
Doorman  v.  .Jenkins,  2  .\il.  A  Kll.  2,V  ;  Lirif- 
lltli  i:  Zipperwick,  28  Ohio  St.  ,S»<s;  Cun- 
lion  *  Manfg.  Co.  v.  Hank,  31  Minn.  394; 
.i4  N.  W.  Uep.  741 ;  Diiiihar  v.  lin^rhes,  6 
La.  .\nn.  161;  Lethhrid.v'e  v.  I'lullips,  a 
Stark,  544;  Kildy  r.  Livingston,  'do  Mo. 
4h7;  H8  Am.  l>oc.  122;  Jenkins  f.  Mot- 
low,  1  Sneed,  24M;  60  Am.  Doc.  154  ;  WooU 
V.  Hernero,  14  Mo.  (App.)  518;  Kldridgu  v. 
Uill,97C.S.  92. 

71 


^■M 


lUII.MKNT  I'OK   rilK  ItAILOU's    liKNKlIT.      [l>AUT  I. 


before  lie  lied."  In  jiiiothei',  ii  letter-carriei'  (lolivci'cd 
!i  re;;is(ere(l  letter  to  the  «lefeii(liUit,  the  elerk  of  u  liotol, 
where  the  juMiu'ssee  was  stoi)[)iiii;  as  a  <;uest.  The  clerk 
si};iie(l  the  return  receipt,  aiul  also  the  letter-carrier's 
l>ook,  aiul  placed  the  letter  iu  the  letterbox  of  the 
hot(d,  from  whence  it  was  stolen.-  In  both  the  bailee 
was  held  liable;  the  banker,  because  no  careful  banker 
would  retain  an  employe  under  such  circumstances,  and 
the  clerk,  because  the  fact  that  a  receipt  was  asked 
for  the  letter  was  notice  to  him  that  it  was  of 
special  im|toi'tance  and  not  to  be  treated  as  an  ordi- 
nar\    letter. 


%'M.  Effect  of  llailee's  Provloiis  Request.— Where, 
however,  a  person  voluntarily  and  olliciously  proposes 
to  keej*  the  <,'oods  of  another,  there  is  said  to  be  Ji  sound 
reason  why  he  should  be  held  to  a  stricter  liability, 
viz.,  (hat  he  may  (hereby  have  preven(ed  the  owner 
from  entrusting  (hem  to  a  more  careful  person.  Mr. 
Edwards,''  while  approvin-;-  this  i>rinciple  when  applied 
to  a  deposit,  criticises  it  in  i(s  applicadon  to  a  nuin- 
date  because  "as  (he  owner  ac(s  volun(arily,  there  does 
not  seem  to  be  any  sound  reason  why  a  friemi,  whoso 
kindness  promj.ts  him  to  olTer  his  services,  should  be 
held  to  a  stricter  rule  of  liability  than  is  demanded 
of  a  stran-er,"^  and  no  doubt  because  the  older  writers, 
while  holdin-  in  such  <:ise  (he  ollicious  <lepositary 
liable  for  ordinary  ne-lec(,  held  the  ollicious  manda- 
tory liabl(.  for  sli-h(  ue-lect^'— a  <listinction  rather  dif- 
li«ult  to  -rasp.     Then.  app<.i,rs  |o  be  n„  direct  adjudica- 


iPralhort).  Kean.WFed.  Ucp.4US;0rii.v 
r.Merriam,;«  N.  K.  Uep.  hm  (in.) ;  j|,.,:. 
chants  Nat.  Hk.  r.  (iuilmartin,  ;)S  s.  i;. 
Uep.  M  ((in.). 

a  Joalyn  r.  Kiii(,-.  27  \tb.  .;>,;    u  X.  \\ 
Ilep.  756. 

72 


■^  iiaii.  §§  ;a,  .Ti 
<  Hail.  §  \:a. 

■'  Jones  Itail.  §  m. 


I'AUT  I. 

hotel, 
clcik 
rricr's 
(ho 
b.iih'c 
in  nicer 
's,  and 
iisk('<I 
as    of 
<>r< li- 


eu. IV.]     BAILMi:XT  FOR  TlfK  HAll.OU's    HKN^RFIT. 


§35 


tion  ou  the  .subject,  but  the  (lillerenee  between  a  case 
where  A  asks  B  to  keej)  his  books  for  him  or  to  carry 
a  lett<'r  for  him,  and  wliere  l\  asks  A  to  allow  him  to 
do  so,  seems  obvious.  The  recpiest  comin*;'  from  P. 
turns  the  baihuent  into  oiu'  founded  on  a  cousich'ra- 
tion,  viz.,  the  act  of  A  accedin<;'  to  It's  re(iuest,'  and 
B  is  liable  for  ordimiry  care,  aud  the  bailment  is  a 
uiutual  benetit  bailment. 

§  35.  Skilled  Bailees, — There  is  still  another  qual- 
ification to  the  rule  as  stated  in  the  fornu-r  sections, 
which  is  that  even  a  jiratuitous  bailee,  if  he  undertakes 
to  do  something;  requirinjj;-  skill,  is  bound  to  exercise 
such  an  amount  of  skill  as,  by  his  profession,  bv  his 
conduct,  by  his  actions,  or  by  his  ordinary  business  re- 
lations, he  pretends  to  the  public  to  possess.-  "If  a 
man,"  it  is  said,  in  an  early  Euj^lish  case,''  ''applies  to 
a  suri;-eon  to  attend  him  in  a  disorder,  for  a  reward 
aud  the  sur;i('<»n  treats  him  improperly,  tliei*e  is  j^ross 
nej; licence,  and  the  surp'on  is  liable  to  an  action.  Tlu> 
sur<;('on  would  also  be  liable  for  such  neirliuence  if  he 
undertook  <;ratis  to  attend  a  sick  i)erson,  because  his 
situation  implies  skill  in  sur<;ery.  But  if  the  patient 
ai)plies  to  a  nuui  of  »lilTerent  employment  or  occui)atlon 
for  /gratuitous  assistance,  who  either  does  not  exert  all 
his  skill,  or  adnduisters  improper  remedies  to  the  best 
of  his  ability,  such  a  ])ersou  is  not  liable."  So  in  a 
later  case,  a  person  skilled  in  the  riding  or  nuinaj;*'- 
nu'ut  of  horses,  wlio,  at  the  request  of  a  fiieud,  rode 
his  horse  for  the  pur])ose  of  exhibiting  him,  was  held 
resjionsible  for  not  usinji'  the  skill  which  he  jtossessed.^ 


I  liiiiiilirul;i;('  r.  I'inii^tipiii',  h  Ad.  &  Kll. 
74.1;  Liiws.  Contr.  § ',i:i. 

'.:  Stanton  r.  Bell,  2  lliiwks  Ur.;  11  Am. 
Dec.  74 ;  Connor  r.  Wiuton,  8  luj.  'M^>; 
00  Am.  L)tc.  7G1. 


■i.shl.'lls  r.  Hlackliiirni',  1  H.  Hi.  159. 
4  Wilson  V.  Hictt,  U  .M.  A  \V.  Ii:i. 


73 


§  35  BAILMENT  FOR  TIIK  HAILOK'h   BENEFIT.     [PAUT  I. 

This  is  not  unreasoiuihlo,  as  tlio  bailor  ma.v  liave  boon 
indutod  to  Inist  tho  baiico  sololj  on  account  of  the  sliili 
which  ho  know  him  to  possess,  Likowiso,  the  law 
Kooks  to  disconrajro  persons  from  holding;  themsolvoB 
out  as  (jualified  to  do  what  they  either  cannot  or  do  not 
intend  to  do. 
74 


ijiwaWPiii  '•  'I 


CIIAl'TKIi    \' 


TIIK    HAILMKXT   Foli   TIIIC    HAILKK  S   HKNKFIT. 

Skction  ;tG.     The  Oratuilous  Lomi. 

37.     lU'iH'Ilt  Must  lu!  all  on  Horrower's  Side, 
as.     JJubility  of  norrower. 

§  30.  Tho  GratiiitoitH  Loan.  ~'V\\v  ntnniunhitum  of 
the  civil  law — lliOHinjilc  btiiliucnl  for  the  sole  bciicfU  of 
the  bailee — is  tho  j^M-atuitoHH  loan,  as  where  A,  willioiit 
it  beiiij;  inteiuled  that  he  .shall  pay  for  the  use,  borrows 
a  thing  from  IJ  for  a  time,  it  beiiit;  un(l(>rstootl  that  tho 
identical  thing-  h'lit  shall  be  I'eturned  to  H.'  In  tiiis 
bailment,  unlike  the  two  gratuitous  bailments  in  the 
previous  chapter,  tho  bailee  is  entitled  to  use  tho  thing 
bailod.2 

§  37.    Benefit  Mu.st  be  all  on  Borrower's  Side. — 

Tho  bonolit  must  bo  all  on  the  side  of  the  bailee — hence 
if  it  appears  that  tho  bailor  is  benefited  by  the  trans- 
action, it  is  not  a  loan,  but  a  bailment  for  hire.-'  Thus, 
whore  the  plaintilT,  having  a  horse  for  which  he  had 
no  use,  to  avoid  tho  expense  of  keeping,  requested  tho 
defendant  to  take  it  and  do  his  work  with  it  in  con- 
sideration of  its  food  and  keeping,  it  was  hold,  that 
this  was  not  a  mere  gratuitous  loan,  under  which  the 
defendant  would  bo  required  to  exorcise  extraordinary 
care,  but  a  contract  for  tho  mutual  benefit  of  both  i)ar- 


1  If  the  iilontical  thing  i>  ni)t  to  be  re- 
turni'cl  it  is  not  ii  luan.  .'"(•(■a;!**  §  K;  Fos- 
dick  r.  Grcfno,  27  Ohio  .St.  404;  "22  Am. 
Ui'p.  H'28;  and  t\w.  borrowing  must  be 
with  tho  owner's  consent.  State  r.  Hry- 
aut,  74  N.  O.  124. 


2  .Schoul.  r.iill.  (C). 

.1  Carpenter  r.  llnimli,  V.\  Vt.  li'.l;  37 
Am.  Dec.  250;  I'utiiani  r.  \V>  ley,  8  Johns. 
432. 


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38 


BAILMENT  FOR  THE  BAILEE'S   BENEFIT.     [PART  I. 


ties,  under  which  the  defendant  was  required  to  exer- 
cise only  ordinary  care  in  the  keeping  and  care  of  the 
animal.*  But  at  the  same  time,  the  mere  fact  that  the 
borrower  of  an  animal  is  at  the  exi^ense  of  feeding  it 
and  taking  care  of  it,  makes  it  none  the  less  a  gratu- 
itous loan.- 

In  every  case  where  goods  are  lent  for  a  use  in  which 
the  lender  has  a  common  ir..  -i-si;  with  the  borrower, 
ai.  in  other  bailments  reciprocr  vlvantageous,  the 
bailee  is  responsible  for  only  oruJuary  negligence,  and 
is  liable  for  their  return  in  tlie  sa?  o  n.anner  as  a  bailee 
for  hire,  as  for  example,  an  agreement  whereby  a  per- 
son undertakes  to  make  a  horse  gentle  and  fit  for  the 
use  of  the  owner's  family,  in  consideration  of  permis- 
sion to  ride  it.'*  So,  wluu'e  goods  are  lent  for  the  sole 
advantage  of  the  lender,  the  obligations  and  duty  of 
the  borrower  must  be  moiiified  and  reduced  to  the 
standard  of  those  exacted  of  a  depositary  without  re- 
ward. Thus,  to  use  the  illustration  given  by  Sir  Wil- 
liam Jones,  if  a  passionate  lover  of  music  were  to  lend 
his  own  instrument  to  a  player  in  a  concert,  merely  to 
augment  his  pleasure  from  the  performance,  and  the 
musician  were  to  play  with  all  due  skill  and  exertiou, 
but  were  to  break  or  hurt  the  instrument,  without  any 
malice  or  very  culpable  negligence,  he  would  not  be 
bound  to  indemnify  the  lender.  Neither  of  these  are 
properly  "loans." 

§  38.  Liability  of  Borrower. — The  borrower  is  re- 
quired to  be  extremely  careful  of  goods  and  chattels, 
the  use  of  which  he  receives  gratuitously.  The  rela- 
tion in  which  he  stands  makes  it  appropriate  that  the 
law  should  be  construed  rigorously  against  him  for  his 


1  Chamberlain  v.  Cobb,  32  Iowa  161. 
a  Bennett  r.  O'Urien,  37  111.  260. 
76 


3  Neal  V.  State,  2G  S.  W.  Kcp.  726  (Tex.). 


i 


CII.  v.]        BAILMENT  FOB  THE  BAILEE'S  BENEFIT. 


§38 


acts  of  neglect.  Having  received  a  favor,  it  is  ad- 
judged a  great  fault  in  Lim  to  be  guilty  of  even  slight 
negligence,  through  which  the  confidence  and  trujt  re- 
posed in  him  are  converted  into  an  injury  to  his  friend.^ 
He  is  obliged  to  use  extraordinary  care,-  and  is  liable 
for  slight  neglect.*'' 

But  his  undertaking  is  not  to  restore  the  thing  at  all 
events,  and  therefore,  he  is  not  responsible  for  loss  of 
or  damage  to  the  borrowed  chattel,  caused  by  inevit^ 
able  accident,  the  act  of  God,  the  public  enemy,  fire, 
natural  causes  or  robbers,  or  thieves,^  provided,  al- 
ways, that  he  can  show  that  the  act  could  not  have 
been  seen  or  prevented,  and  that  no  fault  of  his  con- 
tributed to  create  or  enhance  the  peril.'"'  If,  for  ex- 
ample, the  borrower  of  a  horse  ride  by  a  ruinous  house, 
in  manifest  danger  of  falling,  and  it  actually  fall  and 
kill  the  horse,  he  will  be  responsible  for  its  value; 
though  he  would  not  be  answerable  if  the  house,  being 
in  good  condition,  fell  by  the  violence  of  a  sudden  hur- 
ricane." 

\Yheu  the  house  of  the  borrower  is  on  fire,  it  is  said 
by  Kent  that  if  he  saves  his  own  goods,  and  is  not  able 
to  save  the  articles  borrowed  without  abandoning  his 


1  Kflw.  Hail.  44;  Jones  Bail.  .Sfi,  117. 

2  I.  I-;,  that  degree  of  care  uml  diliftence 
that  the  most  careful  ])ersoiis  are  accus- 
tomed to  apiily  to  their  own  affairs. 

3  FortiMK!  V.  Harris,  G  .Jones,  632; 
Scranton  i:  Baxter,  4  Sand.  !>\  llagebnsli 
V.  Iliigland,  78  111.  40;  Creen  c.  nollings. 
worth, 5  Dana,  17,'i ;  .SO  .Vm.  De.,-.  080 ;  Wood 
V.  McC'lure,  7  Ind.  ],">.');  Copgs  r.  TJernard, 
2  Ld.  Uayin.  Win ;  Rooth  v.  Wilson,  1  IJarn. 
&  Aid.  BO ;  Ilowanl  i:  liabcoek,  21  HI.  2,T.t ; 
Bennett  r.  O'ltrien,  .^7  111.  2.50 ;  rhillips  r. 
Cardon,  14  111.  84;  Carpenter  v.  Branch, 
13  Vt.  ir,l ;  ;i7  .\m.  Dec  587;  I)e  Tollenere 
u.  Fuller,  1  Mill  Const.  117;  12  Am.  Dec. 
Clfi.  Todd  V.  V\'A\vy,  7  Watts,  B42,  the 
Court  saying:  "The  bailee  or  defendant 
below  being  the  only  person,  as  it  would 


seem,  who  was  to  be  beneflted  by  tho 
loan  of  the  mare,  was  therefore  bound  by 
tho  obligation  from  his  implied  contract 
to  take  extraordinary  care  of  her;  and  ho 
became  liable  to  make  good  to  the  plain- 
tiff below  any  loss  which  he  might  snstain 
by  reason  of  au  injury  happening  to  the 
mare,  oven  from  slight  neglect  on  tho 
part  of  him,  the  defendant." 

4  ,«itory  Bail.  §§  21)0, 240 ;  Schoul  B.ad.  81 ; 
Boiler  V.  .Schultz,  44  Mich.  G20;  SS  Am. 
Rep.  280;  7  N.  W.  Rep.  225;  Whitehead 
V.  Vandorbilt,  10  Daly,  214 ;  Watkins  v. 
Roberts,  2S  Ind.  1G7 ;  Fortune  v.  Uarris, 
(>  .lones,  532. 

■s  Do  ToUonere  v.  Fuller,  1  Mill,  117;  12 
Am.  Dec.  Gir,. 

0  Kdw.  Bail.  i:t9. 

77 


§38 


BAILMENT  FOB  THE  BAILEE'S  BENEFIT,      [PAKT  I. 


own,  he  must  pay  for  the  loss,  because  he  uses  less  care 
of  the  articles  borrowed  than  of  his  own  property,  and 
gives  the  preference  to  his  own.       But  he  raises  the 
question,  if  the  borrower's  goods  are  more  valuable 
than    those    borrowed,   and    both    cannot    be   saved, 
whether  he  is  bound  in  that  case  to  prefer  the  less  val- 
uable borrowed  chattels?     He  answers  the  question  by 
stating  the  conclusions  of  Pothier,  that  he  is  liable, 
without  expressing  any  opinion  of  his  own.     Story,  dis- 
cusses the  point  at  considerable  length,  and  maintains 
that  the  borrower,  upon  principle,  ought  not  to  be  held 
liable  m  such  a  case.     The  question  has  not  arisen  in 
any  decided  case  in  our  courts,  and  in  the  opinion  of 
Mr.  Edwards,  is  more  interesting  and  speculative  than 
practical.^ 


1  Edw.  Ba  (.  r  170. 

78 


t| 


CHAPTER  VI. 


THE   MUTUAL   BENEFIT   BAILMENT. 


Section  39. 

The  Classes  of  Mutual  Benefit  Bailments. 

40. 

The  Standard  of  Care  and  Responsibility. 

(a)     Hire  of  Things. 

41. 

The  Hire  of  the  Use  of  a  Thing. 

42. 

The  Hirer's  General  Responsibility. 

(b)    Hire  of  Labor  and  Services. 

43. 

The  Workman,  Manufacturer,  Laborer  or  Artisan 

(c)    Hire  of  Care  or  Custodr. 

44. 

The  General  Principle. 

45. 

The  Agister. 

46. 

The  Liveryman. 

47. 

The  Warehouseman. 

48. 

The  Wharfinger. 

(d)    Hire  of  Carriage. 

49. 

The  Private  Carrier. 

§  39.    The  Classes  of  Mutual  Benefit  Bailments. 

— The  tocatio-condiictio  of  the  civil  law,  the  hiring  for 
reward,  or  the  mutual  benefit  bailment,  embraces  a 
great  variety  of  the  contracts  made  every  day  between 
man  and  man.  Remembering  the  requisite  to  a  bail- 
ment, as  stated  heretofore,  viz.,  that  the  specific  article 
is  to  be  re-delivered,  we  must  at  the  outset  exclude  from 
the  bailment  law  the  ordinary  hire  of  labor  or  services 
alone.  But  whenever  one  delivers  to  a  tailor  a  p.^ce  of 
cloth  out  of  which  a  garment  is  to  be  made,  or  to  a 
jeweler  his  watch  to  be  repaired,  or  to  a  shoemaker  his 
boot  to  be  resoled,  or  to  a  warehouseman  his  furniture 

79 


§40 


THE  MUTUAL  BENEFIT  BAILMENT.  [PAllT  I. 


to  be  kept,  or  to  a  furiuer  his  horse  to  be  pastured,  or 
whenever  he  hires  a  horse  and  carriage  from  a  livery- 
man for  a  drive,  the  bailment  relation  is  created.  And 
not  only  in  private  life,  but  in  the  commercial  world, 
this  species  of  bailment  is  in  daily  use.  The  ware- 
houseman who  stores  for  the  merchant  his  hogsheads 
of  sugar  and  his  bales  of  cotton;  the  safe  depositary  in 
whose  boxes  lie  the  bonds  and  securities  of  the  capital- 
ist;' the  wharfinger  in  whose  charge  remain  for  a  time 
the  consignments  of  goods  from  foreign  shores;  the 
miller  who  grinds  corn,  as  well  as  he  who  saws  logs,- 
and  the  vast  army  of  mc.'hanics  and  artisans  who  do 
work  upon  a  chattel,  be  it  wood,  or  marble,  or  cloth — 
these  are  bailees.^  In  this  class,  unlike  the  ca  ;;e  of  the 
gratuitous  bailment,  an  action  will  lie  for  the  failure  of 
the  one  to  nmke  or  the  other  to  accept  the  promised 
bailment* 

These  bailments  are  divided  into  (<i)  the  hire  of  a 
thing  for  use;  (h)  the  hire  of  labor  and  .service  upon  a 
thing;  (c)  the  hire  of  care  or  custody  of  a  thing;  and 
{(I)  the  hire  of  carriage  or  transportation  of  a  thing. 

§  40.   The  Standard  of  Care  and  Responsibility. 

— The  same  standard  of  care  and  responsibility  at- 
taches to  all  of  these,  the  transaction  being  mutually 
beneficial  to  both  parties;  the  bailee  is  required  to  ex- 
ercise a  degree  of  diligence  greater  than  that  which 
is  demanded  of  the  bailee  without  reward ,  but  less  than 
that  which  is  demanded  of  the  borrower.  The  relation 
changing,  the  liability  changes  also.  The  price  of  the 
hire,  balances  the  use,  so  that  neither  owes  to  the  other 


c 


1  Safe  Deposit  Co.  v.  Pollock,  85  V.i.  St. 
3fll;  27  Am.  Hop.  Gi;n. 

2Gloa.son  r.  IJeerc,  59  Vt.  581;  69  Am. 
Rep.  757;  10  All.  Uep.  8fi;  Wallace  r. 
Canady,  4  8neea3G4;  70  Am.  Dec.  25.5. 

80 


■T  The  ordinary  workman,  as  has  bocn 
said,  has  no  custody  of  the  chattol  on 
which  ho  works,  and  is  therefore  not  a 
liailee  but  a  servant. 

*  Story  Bail.  §§  ;t84,  HHG. 


CII.  VI.]  TIIK  MUTUAL  BENEFIT  BAILMENT. 


§40 


any  special  obligation.  The  contract  between  them  is 
one  of  ordinary  business,  from  which  both  derive  a 
benefit  of  profit  or  convenience.  In  the  employment 
of  property  recei'  ed  under  such  circumstances,  it  is 
obvious  that  the  bailee  can  only  be  held  responsible  for 
the  use  of  ordinary  care  and  common  prudence  in  its 
preservation.  If  he  exercise  the  common  vigilance 
which  the  generality  of  mankind  take  of  their  own 
property,  it  Avill  j)rotect  him  from  liability.  In  the 
absence  of  an  express  agreement,  the  law  implies 
nothing  strained  or  unreasonable;  it  is  satisfied  with 
the  usual  and  ordinary  care  incident  to  the  custody  of 
another's  goods.^  The  bailee  c^  this  cl.iss,  then,  is  held 
to  ordinary  diligence,  /.  c,  such  care  and  diligence  as 
prudent  persons  of  the  same  class  are  wont  to  exercise 
in  the  conduct  of  their  own  affairs  under  like  circum- 
stances, and  is  liable  only  for  a  loss  or  injury  caused  by 
ordinary  negligence — /.  <:,  the  absence  of  ordinary  care. 
He  is,  therefore,  not  responsible  for  a  loss  occasioned 
by  fire,-  or  by  the  act  of  God,  or  inevitable  accident,'' 
or  by  burglary,  robbery,  or  theft,^  or  a  public  enemy^ — 
unless  the  loss  has  been  brought  about  by  the  negli- 


iiis 


1  K(l\v.  I5iiil.  §  .!'.);  Tiinssi)?  v.  Shiekl;;.  20 
SIo.  (App.)  318.  Soc  cases  cited  iu  the  snc- 
cet'iliii};  sections. 

1!  Norway  Plains  Co.  c.  U.  Co.,  1  Gray, 
2r„S;  Gl  Am.  Dec.  42:^;  Francis  v.  It.  Co., 
2.^)  Iowa,  GO ,  05  Am.  Dec.  700;  Uussell  r. 
Koehler,  GO  111.  J.Vl;  Francis  v.  Castle- 
man,  4  ItibI),  2S'.>;  McColliini  v.  Porter,  17 
Lr.  Ann.  8!l;  Miickliu  r.  Frazier,  9  Hush, 
.S;  Aldrich  v.  R.  K.  Co.,  100  Mass.  ,S1 ;  97 
Am.  Dec.  74;  Gibson  v.  Ilatchett,  24  Ala. 
201;  Ilatchett  J'.  Gibson,  K^Aln.  r>S7;  Irons 
t\Kentner,  51  Iowa,  8S;  HS  Am.  Hep.  119. 

3  Knapp  I'.  Curtis,  9  Wend.  70;  McCol- 
liim  r.  Porter,  17  La.  Ann.  bO;  Jones  f. 
Gilmorcfll  Pa.  .St.  HIO. 

^Schwerin  v.  McKio,  ."il  N.  Y.  180;  10 
Am.  llep.  581 ;  Piatt  r.  Ilibbard,  7  Cow. 
497;  8chmidt  r.  Blood,  9  Wend.  208;  24 


Am.  Dec.  143;  Clallin  r.  Jleyer,  75  N.  Y. 
2G0;  31  Am.  Rep.  407;  Jloorc  v.  Slayor,  1 
Stew.  284 ;  Cincinnati  etc.  U.  U.  Co.  v. 
McCool,  26  Ind.  140;  Lamb  v.  K.  11.  Co., 
7  Allen,  98;  Cass  r.  H.  K.  Co.,  14  Allen, 
448;  Williams  v.  Holland,  22  How.  Pr. 
I.i7;  Neal  v.  U.  R.  Co.,  8  Jones,  482;  Piko 
V.  K.  K.  Co.,  40  Wis.  583;  llerry  v.  Marei.\, 
17  La.  Ann.  248 ;  Walker  v.  British  Guar- 
antee Assn.,  18  Q.  15.  277. 

fi  Abraham  v.  Nnnn,  42  Ala.  51 ;  Yale  f. 
Oliver,  21  La.  Ann.  454;  Smith  v.  Frost,  51 
Ga.  3.30;  Waller  r.  Parker,  5  Cold.  476; 
llabcock  r.  Murphy,  20  La.  Ann.  .399;  Mc- 
Cranie  r.  Wood,  24  lx>.  Ann.  40G.  Thieves, 
tramps  and  robbers  arc  not  "public 
enemies."  State  f.  Moore,  74  Mo.  413; 
41  Am.  Rep.  382. 

81 


I 


§41 


THE  MUTUAL  BENEFIT  BAILMENT.  [PAKT  I. 


gence  of  the  bailee,  either  in  preventing  such  a  calam- 
ity or  in  lessening  its  injurious  effects.^  He  is  liable 
for  a  negligent  injury,  though  after  the  happening  of 
the  injury,  the  goods  were  destroyed  without  his  fault, 
and  would  have  been  so  destroyed  had  they  not  been 
previously  injured.- 

(;i).    Hire  of   Things. 

§  41.     The  Hire  of  the  Use  of  a  Thing.— This 

class  of  bailment  is  created  where  one  obtains,  for  a 
consideration,  the  use  of  anothei-'s  goods  for  a  term. 
The  compensation  to  be  paid  for  the  use  distinguishes 
this  from  the  loan,  for  where  the  least  consideration  is 
found,  it  is  a  hiring  and  not  a  loan.''  A  chattel  being 
in  another's  possession  with  a  right  to  use  it  a  hiring 
is  presumed;*  but  proof  of  a  loan  will  not  sustain  an 
action  for  hiie.^  He  who  hires  goods  or  chattels  for 
use  acquires  a  possessory  interest  in  them  during  the 
term  of  his  contract;  he  contracts  for,  or  purchases 
the  use  of  the  chattels  for  the  period  or  purposes  of  the 
contract.  The  price  paid  or  promised,  either  expressly 
or  impliedly,  is  the  consideration  for  the  use;  so  that 
the  hirer  becomes  the  temporary  proi)rietor  of  the 
things  bailed.  A  contract  of  hiring  need  not  be  in 
writing.^ 


1  Smith  i>.  Miv>gan,  22  Mo.  150;  C4  Am. 
Dec.  256 ;  Schwcrin  r.  McKie,  51  N.  Y.  IHO ; 
10  Am.  Rep.  581 ;  Jones  v.  Morgnn,  90  N. 
Y.  4;  43  Am.  Ucp.  131;  Merchants  Trans. 
Co.  V  Story,  50  Md.  4 ;  33  Am.  Dec.  293 ; 
Vincent  v.  Rather,  31  Tex.  77 ;  98  Am.  Dec, 
616;  Stevens  v.  R.  Co.,  1  Gray,  277;  Madan 
V.  Covert,  42  N.  Y.  (S.  C.)  1.S6;  Smith  i'. 
Frost,  51  Ga.  330- ;  Schwartz  r.  Baer,  21  La. 
Ann.  601 ;  Gibson  v.  Hatehett,  24  Ala.  201 ; 
Hatchett  v.  Gibson,  13  Ala.  557 ;  Francis  v. 
Castleman,  4  Bibb,  482. 

82 


2  Powers  V,  Mitchell,  3  Hill,  545. 

3  Carpenter  r.  Branch,  13  Vt.  161;  .S7 
Am.  Dec.  557;  Chamberlain  v.  Cobb,  .'(2 
la.  160;  Francis  v.  Schrader,  67  111.  272; 
Gafff.  O'Neil,  2Cin.  Rep  246 ;  mUnam  i). 
Wyley,  8  Johns.  4.32 ;  5  Am.  Dec.  346. 

4  Reilly  r.  Hand,  123  Mass  215. 

'<  Dunham  v.  Kinnear,  1  Watts,  130. 
fi  Foreman  v.  Drake,  98  N.  C.  311;  3  S. 
E.  Rep.  842. 


en.  VI.]  TIIK  MUTUAL  BENEFIT  BAILMENT. 


§43 


\ 


§  42.    The  Hirer's  General  Responsibility.— The 

bailment  beinj^  a  mutual  benefit  one,  the  hirer  is  liable 
for  ordinary  neglect  only;  and  like  other  bailees  of  this 
class,  is  not  responsible  if  the  thing  hired  is  lost  or  in- 
jured through  fire,  robbery  or  theft,  accident  or  su- 
perior force,*  unless  his  neglect  contributed  thereto.^ 
The  owner  is  his  own  insurer  against  the  perils  that 
belong  to  the  service  of  the  thing  hired.''  The  hirer 
of  an  animal  is  not  responsible  for  its  falling  sick  or 
lame  or  dying  while  in  his  care.'  The  hirer  of  a  horse 
is  liable  for  failing  to  use  reasonable  prudence  and  skill 
in  driving  it  whereby  it  is  injured;^  or  in  his  care  of  it, 
as  where  he  overfeeds  or  overwaters  it,  and  it  dies 
thereof;"  or  where  he  was  told  before  he  had  accom- 
plished more  than  a  small  portion  of  his  journey  that 
the  horse  was  sick,  but  he  continued  on,  and  the  ani- 
mal died  at  the  end  of  the  journey.^ 

(b).     Hire  of  Lahor  and  Serxticcs. 

%  43.    The    Workman,   Manufacturer,    Laborer 

or  Artisan. — The  bailee  receiving  materials  to  manu- 
facture, or  goods  of  any  kind  to  perform  Avork  upon, 


1  Schonl.  Bail.  §l.i2;  Story  Bail.  §398; 
Hniullora  r.  I'almi-r,  2  Bos.  &  1".  351); 
Cliambeiiaiit  v.  Col)b,  32  Iowa,  Gl ;  East- 
man r.  Sanborn,  3  Allen,  504 ;  81  Am.  Dec. 
677;  jUooers  v.  Larry,  15  (iray,  451 ;  Jack- 
son V.  Robinson,  18  B.  Mon.  1 ;  Angus  v. 
Dickerson,  1  Meigs,  4.59;  Milton  v.  Salis- 
bury, 13  .lolins.  211 ;  Brown  r.  Waterman, 
10  Ciish.  11";  Swigert  v.  Graham,  7  B. 
Mon.  (iiil ;  Downey  r.  Staccy,  1  La.  Ann. 
42G;  Field  v.  Brackett,  5(i  .Me.  121;  JIc- 
Evers  v.  Steamboat  Sangamon,  22  Mo. 
187;  Watklns  r.  Koberts,  28  Ind,  1G7;  Ily- 
land  f.  Paul,  33  Barb.  241 ;  St.  Paul  etc. 
K.  K.  Co.  V.  R.  R.  Co.,  2G  Minn.  24.;;  37 
Am.  Rep.  404;  2  N.  W.  Rep.  700;  Long- 
man t'.  Caleni,  Abbott  on  Shipping,  270, 
note;  Conwell  v.  Smith,  8  Ind.  630; 
Stewart  t'.   R.  Co.,  4  Biss.  3G2. 

2  Eastman  f.  Sanborn,  3  Allen,  594;  81 
Am.  Dec.  667 ;  Edwards  r.  Carr,  13  Uray, 


2.34;Banneld  v.  Whipple,  10  Allen,  27; 
87  Am.  Dec.  618;  Bnis  r.  Cook,  GO  Mo. 
.391;  Wentworth  v.  .McDuffle,  48  N.  11. 
402 ;  Cross  v.  Brown,  41  N.  H.  283 ;  Thomp- 
son V.  Harlow,  31  Ga.  14H;  McNeill  v. 
Brooks,  1  Yerg.  73 ;  Ray  v.  Tubbs,  50Vt. 
688;  26  Am.  Rep.  519. 

3  Reeves  t'.  The  Constitution,  Gilp. 
579.  The  hirer  of  a  horse  and  carriage 
would  not  be  liable  even  for  immoderate 
driving  it  the  owner  sent  his  own  driver. 
Hughes  V.  Boyor,  9  Watts,  556. 

4  Millon  V.  Salisbury,  13  Johns.  211 ; 
Bnis  f.  Cook,  60  Mo.  391 ;  Currier  v.  Dor- 
raucc,  19  S.  C.  30. 

*  Mooers  r.  Larry,  15  Gray,  451 ;  West  t'. 
Blackshaer,  20  Fla.  4.-.7. 

0  Eastman  v.  Sanborn,  3  Allen,  594 ;  81 
Am.  Dec.  774. 

7  Thompson  c.  Harlow,  31  Ga.  348. 

83 


I 


§43 


THE  MUTUAL  BENEFIT  BAILMENT.  fPAKT  t. 


impliedly  engages  to  perform  his  undertaking  in  a 
skillful  and  workmanlike  manner.  By  the  very  act 
of  receiving  them  for  the  purpose,  he  impliedly  agrees 
that  he  has  the  requisite  skill,  and  that  he  will  use  it.' 
But  this  is  not  the  whole  of  his  undertaking;  he  is  not 
only  obliged  to  perform  his  work  in  a  workmanlike 
manner,  but  since  he  is  entitled  to  a  reward,  either  by 
express  bargain  or  by  implication,  ho  must  also  take 
ordinary  care  of  the  thing  bailed  to  him.^ 

ITe  is  not  answerable  if  the  thing  bailed  be  lost,  de- 
stroyed or  injured  without  his  fault;  that  is  to  say,  he 
is  not  responsible  for  the  loss  or  injury,  provided  he  has 
exercised  the  same  degree  of  diligence  in  respect  to  it 
which  the  generality  of  mankind  use  in  keeping  and 
guarding  their  own  goods.  In  cases  of  loss  by  internal 
decay,  robbery,  tlu^ft,  fire,  sui)erior  force  or  other  cas- 
ualty, his  liability  depends  upon  the  settlement  of  the 
question  of  fact,  namely,  whether  the  loss  was  caused 
by  his  failure  to  exercise  the  requisite  care  and  dili- 
gence, lie  is  not  answerable  for  the  direct  and  natural 
consequences  flowing  from  causes  like  these;  but  he  is 
sometimes  responsible  for  them  where  he  has  given  OC' 
casiou'to  the  loss  or  injury  by  omitting  to  provide 
against  them,  or  by  conduct  which  subjects  the  prop- 
erty to  the  hazard  of  such  perils  an '  dangers.*''  A 
watchmaker,  for  example,  who  receives  a  watch  to  re- 
pair, is  bound  to  use  ordinary  diligence  in  its  safe- 
keeping; if  the  watch,  while  in  his  custody,  is  stolen 
through  his  negligence,  he  will  be  liable.*     He  must 

Bliss,  10 


iLaws.  Contr.  §58;  Keith  v 
111.  (App.)  421. 

2  Smith  «.  Meegan,  22  Mo.  150;  64  Am. 
Dec.  2,59;  Halyards.  Dechclman,  29  5ro. 
459;  77  Am.  Dec.  585;  Hillyard  v.  Crab 
tree,  11  Tex.  2r,4;  62  Am.  Dec.  475;  liiis- 
sell  V.  Koehler,  66  111.  4,59;  Spanplci-r. 
Eicholtz,  25  111.  297 ;  Gambcr  v.  Wolavcr, 
1  Watts  &  S.  60;  McCaw  v.  Kimbiel,  4 

84 


McCord,  220;  Chambers  v.  Crawford, 
Adili-.  151 ;  Kelton  v.  Taylor,  11  T.oa,  2G4 ; 
47  Am.  Hep.  284  ;  tileason  v.  lieers,  ,59  Vt. 
589;  59  Am.  Uep.  757;  Penn.  Canal  Co.  t-. 
r.nrd,90Pa.  St.  281;  Foster  r.  Taylor,  2 
lircv.  348. 

3  Edw.  Bail,  §  375. 

*  Halyard  v.  Dechelraan,  29  Mo.  459;  77 
Am.  Dec.  585. 


CII.  VI.]  THE  MUTUAL  BENEFIT  BAILMENT. 


§44 


at  least,  take  the  same  care  of  the  bailed  property  as 
he  does  of  his  own.  In  an  old  case,  A  intrusted  B,  a 
chronometer-maker,  with  a  chronometer  to  be  repaired, 
and  B  suffered  his  servant  to  sleep  in  the  shop  in  which 
the  chronometer  was  deposited.  B  was  held  liable  to 
A  for  its  value,  B's  servant  having  stolen  it,  and  B,  at 
the  same  time  when  the  theft  was  committed,  having 
deposited  his  watches  in  a  more  secure  place  than  that 
in  which  the  chronometer  was  left.^ 


(c).     Hire  of  Care  or  Custody. 

%  44.  The  General  Principle. — Where  one  person 
deposits  his  goods  with  another,  and  pays  a  considera- 
tion for  the  custody  of  them,  the  contract  being  mu- 
tually beneficial  to  the  parties,  the  bailee  must  answer 
for  ordinary  neglect.  The  fact  that  he  receives  a  re- 
ward binds  him  to  a  diligence  increased  beyond  that 
of  the  mere  depositary;  while  the  service  he  renders 
to  the  owner  of  the  goods,  in  keeping  and  guarding 
them,  brings  him  under  a  less  stringent  obligation 
than  that  which  rests  upon  one  who  borrows  the  use  of 
a  chattel,  without  rendering  any  sort  of  recompense  for 
it.  He  is  responsible  for  the  exercise  of  ordinary  dili- 
gence, *.  c,  he  is  bound  to  take  that  care  of  the  goods 
intrusted  to  him  which  every  person  of  common  pru- 
dence, and  capable  of  governing  a  ffimily,  takes  of  his 
own  concerns.- 

There  is  no  term  known  to  the  law  as  descriptive  of 
the  bailee  of  this  character,  except  in  some  special 
branches  of  the  service,  such  as  that  carried  on  by  the 
agister,  the  liverystable-keeper,  the  warehouseman  and 
the  wharfinger,  and  in  more  modern  times,  by  the 


1  Clark  V.  Earnshaw,  Gow.,  93. 

2  See  cases  pott ;  Wadsworth  v.  Alcott,  6 


N.  Y.  64;  Bnckleyr.  Andrews,  39  Conn. 
71 ;  Kant  v.  Kesslei,  U4  Pa.  St.  603 

85 


I 


§45 


THE  MUTUAL  BENEFIT  BAILMENT.  [PART  I. 


stock-Tiirds  corporation^   and  the  safe  deposit  com- 
pany.2 

Public  oiru'crs,  a  part  of  wlioR*^  duties  is  to  taJce 
care  of  chattels  in  their  hands,  are  bailees  for  hire  of 
this  character.^  So,  one  who  receives  money,  as  the 
treasurer  of  an  association,  by  whose  rules  he  is  to  pay 
over  all  moneys  within  a  prescribed  time,  does  not  vio- 
late such  obligation  if,  after  receiving  moneys,  and  be- 
fore he  has  an  opportunity  of  paying  them  over,  he  is 
robbed  of  them  by  irresistible  violence,  and  without 
fault  of  his  own;  such  obligation  being  that  only  of  a 
bailee.* 

§  45.  The  Agister.  —If  a  man  trke  in  a  horse,  or 
other  cattle,  to  graze  and  pasture  in  his  grounds,  which 
the  law  calls  agistment,  he  is  (unless  it  is  clear  that  it 
is  a  gratuitous  taking),  a  bailee  for  hire,  and  bound  to 
use  ordinary  care  in  their  keeping.''  He  is  not  respon- 
sible if  they  be  stolen  from  the  field;  but  if  he  leave 
open  the  gates  of  his  field,  or  neglect  to  keep  his  fences 
safe,  in  consequence  of  which  neglect  they  stray  and 
are  stolen,  the  owner  has  an  action  against  him,  for 
this  is  negligence  on  his  part.^  The  same  conclusion 
was  reached  where  the  agister  turned  a  colt  into  a  field 
in  which  there  was  a  bull.''  And  if  he  has  agreed  to 
drive  the  cattle  from  one  place  to  another,  he  is  bound 
to  exercise  the  same  degree  of  care  and  diligence  that 

1  Del.  etc.  R.  Co.  v.  Central  Stock  Yards 
Co.  43  N.  J.  Eq.  VI. 

2  Safe  Deposit  Co.  v.  Pollock,  85  Pa.  St. 
301 ;  27  Am.  Ecp.  G60. 

3  Cross  V.  Brown,  41  X.  H.  28.S ;  Witow- 
ski  r.  Brennan,  41  N.  Y.  (S.  C.)  284 ;  Blake 
r.  Kimball,  106  Mass.  11,5;  Aurcntzr.  I'or- 
trr,  56  Pa.  St.  115;  Borko  v.  Trevet,  1  Ma- 
son, 96. 

4  Walker  v.  British  Guarantee  Asso- 
ciation, 18  Q.  B.  277;  16  Jur.  885;  21  L.  J. 
Q.  B.  257. 

5  Smith  V.  Cook,  1  Q.  B.  Div.  79;  Mc- 
Carthy V.   Wolfe,  40  Mo.  520;  Ualty  r. 

86 


Markel,  44  111.  225 ;  92  Am.  Dec.  182 ;  East, 
man  r.  Patterson,  .S8  Vt.  146 ;  .Scarle  v. 
Laverick,  L.  U.  9  Q.  B.  122 ;  Swann  v. 
Brown,  6  .Jones,  150;  72  Am.  Dec.  568; 
Owens  f.  GeiRcr,  2  Mo.  ,TO;  22  Am.  Dec. 
4,S5 ;  Sargent  v.  Slack,  47  Vt.  674 ;  19  Am. 
Uep.  137 ;  Key  v.  Toney,  24  Mo.  600 ;  69 
Am.  Dec.  444;  Eacc  v.  Ilansen,  12  III. 
(App.)  605. 

6  Cecil  I'.  Prench,  4  Martin,  N.  S.  266; 
16  Am.  Dec.  171;  Umlanf  r.  Bassett,  38 
111.  96 ;  Winston  v.  Taylor,  28  Mo.  82 ;  76 
Am.  Dec.  112. 

7  Smith  V.  Cook,  1  Q.  B.  Div.  79. 


A 


CII.  VI.]  THE   MUTUAL  BENEFIT  BAILMENT. 


§47 


men  of  common  prudenoo,  engapfod  in  drivinpj  their  own 
cattle  over  similar  routes,  ordinarily  exercise.^     An 
agister  must  notify  his  customers  of  any  unusual  risk 
to  which  their  cattle  are  exposed  in  his  pasture  ground.^ 

§  46.    The  Liveryman. — One  who  takes  a  horse  to 
keep  and  feed,  as  a  livery  stable-keeper,  is  liable  for 
ordinary  negligence  only.^     A  liverystable-keeper  has 
been  adjudged  guilty  of  nej^li  -  }nce  when  he  permitted  a 
stranger  to  enter  tl'o  stable  at  night  to  take  out  his 
horse,  and  did  not  see  that  the  door  was  closed,  whereby 
tlio  bailor's  horse  escaped  and  was  lost;*  when  he  know- 
ingly hitched  the  horse  near  another  horse  which  he 
knew  to  be  addicted  to  kicking;"  when  knowing  the 
horse  to  be  sick,  he  neither  furnished  it  with  proper 
treatment,  nor  notified  its  owner;"  when  he  permitted 
drunken  men,  with  pipes  and  matches,  to  spend  the 
night  in  the  hay  loft,  and  the  stable  was  burned.'^ 

§  47.  The  Warehouseman. — A'  warehouseman,  or 
depositary  of  goods  for  hire,  is  bound  only  for  ordinary 
care,  and  is  not  liable  for  a  loss  arising  from  accident 
where  he  is  not  in  default;  and  he  is  not  in  default  when 
he  exercises  such  due  and  common  diligence  in  the  care 
of  goods  intrusted  to  him  as  the  ordinary  man  bestows 
in  the  care  of  his  own.^    The  law  does  not  require  him 


1  Maynard  v.  Bock,  100  Mass.  45;  sec 
Newton  I'.  I'ope,  1  Cow.  109. 

2  McLaint'.  Lloyd.S  Phila.  195. 

3  Dennis  r.  Ilnyck,  48  Mich.  620;  42  Am. 
Kep.  479;  12  N.  W.  Kep.  878. 

4  Swann  v.  Brown,  6  Jones,  150;  72  Am. 
Dec.  568. 

fi  Clary  i-.  Willey,  49  Vt.  65. 

6  Hexamcr  r.  SontUal,  49  N.  J.  (L.)  682; 
lOAtl.  Rep.  ;,i81. 

7  Eaton  V.  Lancaster,  79  Me.  477;  10  Atl. 
Rep.  449. 

»  Chase  v.  Washbnrn,  1  Ohio  St.  244;  .59 
Am.  Dec.  623;  Caililf  v.  Danvers,  Peakc, 


156;  Batnt  v.  Hartley,  L.  R.  7  Q.  B.  594; 
Monltonv.  Phillips,  10  R.  I.  218;  14  Am. 
Rop.  663;  Myers  v.  Walker,  31  111.  353; 
Morehead  v.  Brown,  6  Jones,  307;  Tits- 
worth  t'.  Wiunegar,  51  Barb.  148;  Vincent 
V.  Rather,  33  Tex.  77;  98  Am.  Dec.  516; 
Jones  V.  natchett,  14  Ala.  743;  Norway 
Plains  Co.  v.  R.  R.  Co.,  1  Gr.iy,  203 ;  61  Am, 
Dec.  423;  Piatt  v.  Hibbard,  7  Cow.  497; 
Schmidt  v.  Blood,  9  Wend.  2G8;  24  Am. 
Dec.  143;  Knapp  v.  Curtis,  9  Wend.  60; 
Areut  V.  Sqnire,  1  Daly,  350;  Madan  v. 
Covert,  42  N.  Y.  Sup.  Ct.  ISt;  Dncker  v. 
Barrett,  5  Mo.  97;  Cowles  t'.  Pointer,  26 

87 


§47 


THE  MUTUAL  BENEFIT  BAILMENT.  [PART  I. 


to  construct  his  buildings  secure  from  all  possible  con- 
tingencies; if  they  are  reasonably  and  ordinal  ily  safe 
against  ordinary  and  common  occurrences,  it  is  suffi- 
cient.^    As  in  all  bailments,  the  nature  and  value  of 
the  property  affect  the  question  of  ordinary  care.     The 
warehouseman  is  not  expected  to  take  the  same  care  of 
a  bag  of  oats  as  of  a  bag  of  money;  of  a  bale  of  cotton 
as  of  a  box  of  jewelry;  of  a  load  of  wood  as  of  a  box  of 
valuable  paintings  ;2  of  a  quantity  of  pig-iron  as  of  a 
bale  of  hemp  in  wet  Aveather.''     But  one  who  delivers 
to  him  a  small  quantity  of  a  thing  has  the  right  to  ex- 
pect the  same  care  as  a  large  quantity  of  the  same 
thing  would  receive.*    He  is  not  liable  for  any  injury 
to  the  stored  goods  by  rats  or  other  vermin,'^  though  it 
seems  to  be  expected  of  him  that  he  shall  keep  about 
the  premises  a  cat"  or  a  terrier  dog.^    The  warehouse- 
man was  held  to  be  guilty  of  negligence  where,  hav- 
ing  received   bales   of   cotton   to   store,   the    covers 
being  torn,  he  left  them  in  an  open  lot  of  ground  so  ex- 
posed that  the  under  bales  sunk  into  the  mud  and 
were  damaged,^  where  with  other  goods  in  the  pame 


Miss.  253;  Holtzclaw  v.  Dnff,  27  Mo.  392; 
Claflin  V.  Meyer,  75  N.  Y.  260;  31  Am.  Rep. 
467;iFooter.  Storrs,  2  Barb.  328;  Brown 
V.  Hitchcock,  28  Vt.  452;  Neal  v.  R,  R.  Co., 
8  Jones,  482;  Spangler  v.  Eicholtz,  25  III. 
297;  Taylors.  Secrist,  2  Disn.  299;  Buck- 
ingham V.  Fisher,  70  111.  121 ;  natchett  v. 
Gibson,  13  Ala.  587;  McCuUom  v.  Porter, 
17  La.  Ann.  89;  Armfleld  t).  niiniphrcy,  12 
ni.  (App.)  90;  Wilson  v.  R.  Co.,  62  Cal. 
164;  Hamilton  r.  Elstner,  24  La.  Ann.  455; 
Schwartz  V.  Baer,  21  La.  Ann.  601 ;  Irons 
V.  Kentner,  51  la.  88;  33  Am.  Rep.  119; 
5  N.  W.  Rep.  73;  Laniaro  v.  London  etc. 
Docks  Co.,  .39  L.  T.  (N.  S.)  330 ;  Turrantnro 
V.  K.  Co.,  100  J.  C.  375;  6  Am.  St.  Rep. 
602;  6  S.  E.  Rep.  116;  Bogert  v.  Haight, 
20  Barb.  251;  Dimmick  v.  11.  R.  Co.,  18 
Wis.  471;  Macklini'.  Frazicr,  9  Bnsh,  5; 
Moose  r.  Mayor,  1  Stew.  284;  CiHcinnati 

88 


etc.  R.  R.  Co.  V.  McCool,  26  Ind.  140; 
Smith  V.  Simms,  51  How.  Pr.  305;  Backus 
V.  Start,  13  Fed.  Rep.  67;  McCarthy  v.  U. 
R.  Co.,  ,S0  Pa.  St.  69;  Madan  v.  Cover,  13 
Jones  &  S.  245;  Aldrich  v.  R.  R.  Co.,  100 
Mass.  31;  97  Am.  Dec.  74.  Warehouse- 
men have  in  late  years  been  held  to  bo 
caiTyIng  on  a  public  business  so  far  as  to 
be  subject  to  public  regulation  and  con- 
trol. Munn  i:  People,  94  U.  S.  113 ;  Nash 
V.  Pago.  80  Ky.  539;  44  Am.  Rep.  490. 
,  1  Cowles  f.  Pointer,  26  Miss.  253. 

2  Hatchett  r.  Gibson,  13  Ala,  687 ;  I;rown 
V.  Hitchcock,  28  Vt.  452. 

S  Holtzclaw  V.  Uutf,  27  Mo.  .S92. 

4  Hatchett  i-.  Gibson,  13  Ala.  587. 

B  Story  Bail.  §  444. 

0  Cailill  V.  Hanvcrs,  1  Peake,  155. 

7  Taylor  v.  Secrest,  2  Disney,  299. 

8  Morehead  v.  Brown,  6  Jones,  367. 


CH.  VI.]  THE   MUTUAL  BENEFIT  BAILMENT. 


47 


s 


warehouse,  he  stored  large  quantities  of  gunpowder,^ 
and  where  the  roof  of  the  warehouse,  being  allowed  to 
remain  overloaded  with  snow,  fell  in.^ 

The  principle  is  well  stated  in  a  New  York  case,^ 
where  a  quantity  of  cigars,  having  been  stolen  from  a 
warehouse,  and  the  contention  of  the  plaintiff  being 
that  there  was  neglect  on  the  part  of  the  defendant  in 
properly  securing  and  guarding  it,  the  jury  were  told: 
"In  determining  the  means  used  in  protecting  goods 
stored  against  loss,  they  were  not  to  occupy  their  time 
in  endeavoring  to  find  out  in  what  form  the  highest  ex- 
ertion of  the  most  acute  intellect  and  experience  would 
enable  a  man  to  devise  means  to  protect  goods  in  a 
warehouse  against  danger,  but  to  determine  what  a 
man  would  do  in  the  exercise  of  ordinary  prudence  to 
protect  his  property.  They  must  be  careful  not  to  say 
at  once,  'Such  and  such  things  ought  to  have  been 
done,'  because  they  were  suggested  or  then  suggested 
themselves  to  them,  but  reflect  what  a  merely  ordinarily 
prudent  man  would  do  in  taking  charge  of  property  of 
this  kind,  and  therefore  to  determine  whether  this 
warehouse  was  put  in  proper  condition,  such  as  a  pru- 
dent man  taking  care  of  his  own  goods  in  his  own  ware- 
house, would  have  put  it,  who  guarded  and  cared  for 
his  own  property.  If  there  is  extra  precaution  that  a 
prudent  man  would  use  as  to  fastenings,  or  as  to  the 
use  of  fence,  watch-dogs,  or  private  watchmen  outside, 
it  was  for  them  to  say  whether  these  were  such  things 
as  a  prudent  man  would  use  in  ordinary  cases,  and 
whether  the  want  of  such  safeguards  was  the  cause 
of  the  abstraction  of  the  goods."  In  a  Kentucky  case, 
where  a  person  storing  salt  for  another  did  so  so  ineffec- 

1  Whitct).  R.  ro.,BDill.  488;3McCrary,  3  Schwerin  v.  McKio,  51  N.  Y.  180;  10 
669.                                                                         Am..Kep.581. 

2  Moulton  r.  I'hillips,  10  U.  I.  218;  U 
Am.  licp.  6G3. 

89 


1' 


i 


§49 


T[IE  MUTUAL  BENEFIT  BAILMENT.  [PART  I. 


tually  that  fifty  barrels  a  week  were  rolled  out  and 
taken  by  thieves — 240  being  gone  before  the  theft  was 
discovered,^  he  was  properly  held  liable. 

§48.  The  Wharfinger.-  A.  warehouseman  i»  a: 
person  who  receives  goods  and  merchandise  into  his 
warehouse  to  be  stored  for  hire;  a  wharfinger  is  one 
who  owns  or  keeps  a  wharf,  for  the  purpose  of  reeeir- 
ing  and  shipping  merchandise  to  or  from  it,  for  hire.* 
In  some  instances,  the  wharfinger  being  the  owner  of 
a  warehouse  on  the  wharf,  assumes  also  the  duties  ani 
the  character  of  a  warehouseman,  and  his  responsibili- 
ties are  the  same.^  In  a  Pennsylvania  case,  the  court 
say:  "Defendant  was  a  wharfinger,  ....  a  bailee 
for  hire,  and  by  general  engagement,  liable  to  extend 
over  plaintiff's  lumber,  like  that  of  others,  ordinary 
care  and  protection.  What  is  meant  by  ordinary  care 
was  properly  explained  and  defined.  It  is  such  as  the 
generality  of  mankind  use  in  their  own  affairs.  This  is 
required  when  the  contract  of  bailment,  express  or  im- 
plied, is  reciprocally  beneficial.  This  kind  of  care  and 
skill  is  by  law  required  of  all  persons  employed  in  anj 
business."* 

(d).     The  Hire  of  Carriage. 

%  49.  The  Private  Carrier. — A  person  whose  trade 
is  not  that  of  conveying  goods  from  one  place  or  person 
to  another,  may,  nevertheless,  upon  occasion,  under- 
take to  carry  the  goods  of  another,  and  receive  a  re- 
ward for  so  doing.    Such  a  person  is  a  private  carrier,^ 


1  Chenowith  v.  Dickinson,  8  B.  Mon. 
156. 

2  Edw.  Bail.  108. 

3  Buckingham  v.  Fisher,  70  111.  121 ; 
Parker  v.  Lombard,  100  Mass.  405 ;  Howell 
V.  Morton,  78  111.  1G2;  Reamer  v.  Davis,  85 
Ind.  201 ;  Sideways  v.  Todd,  2  Stark,  400 ; 
Cox  V.  O'Riley,  4  Ind.  3G8;  68  Am.  Dec. 

90 


633;  Footer.  Storrs,  2  Barb.  326;  Piatt  v. 
Hibbard,  7  Cow.  49";  Blin  v.  Mayo,  10  VU 
nii;  33  Am,  Dec.  176;  Merchants'  Wharf- 
boat  Ass'nti.  Wood,  64  Miss,  661;  60  Am. 
Uep.  76;  2  South.  Rep.  76. 

4  Uodgers  v.  Stophel,  ii2  Pa.  St.  115;  72 
Am.  Dec.  776. 

8  Browne  Carr,  §  32. 


CII.  VI.]  THE   MUTUAL  BENEFIT  BAILMENT. 


§49 


'  'I 


and  like  other  bailees  for  hire,  is  responsible  for  ordi- 
nary negligence*  which  ve  have  seen  is  the  absence  of 
ordinary  diligence,  which,  again,  is  that  amount  of  care 
which  a  prudent  man  ordinarily  takes  of  his  own  goods 
or  his  own  business.^ 

The  responsibility  of  a  common  carrier  is,  as  we  shall 
see,  much  greater,  but  it  is  only  necessary  to  say  here 
that  one,  though  he  may  carry  the  goods  of  another, 
is  not  liable  as  a  common  carrier,  unless  he  was  under 
Si  legal  obligation  to  accept  the  goods  and  carry  them, 
and  would  have  been  liable  to  an  action  if,  without 
reasonable  excuse,  he  had  refused  to  receive  them ;  and 
that  he  could  not  be  liable  to  an  action  unless  he  had 
expressly  and  publicly  offered  to  carry  for  all  persons 
indifferently,  or  had,  by  his  conduct  and  in  the  manner 
of  conducting  his  business,  held  himself  out  as  ready 
to  carry  for  a  11.^ 


1  story  Bail.,  §  444;  Forsythe  v.  Walker. 
9  Pa.  St.  148;  Pennewill  v.  i'ullen,  5  Uarr. 
(Del.)  238;  White  v.  Kascom,  28  Vt.  268; 
Bairdf.  Daly,  57  N.  Y,  23G;  16  Am.  Rep. 
488;  Bush  r.  Miller,  13  Barb.  488;  Powers 
V.  Mitchell,  3  Hill,  545;  Uobortsf.  Turner, 
12  Johns,  232 ;  7  Am.  Dec.  311 ;  Dillon  i'.  R. 
K.  Co.,  1  nut.,  231;  Brown  v.  Dcnison,  2 


Wend.  593;  Piatt  v.  nibbard,  7  Cow.  497; 
Stannardr.  Prince,  64  N.  Y.  .300;  Uoltz- 
Claw  V.  Duff,  27  Mo.  392. 

2  Browne  Carr,  §  33;  Shaw  i;.  R.  Co.,  8 
Gray,  45, 

3  See  post;  Varblo  v.  Bigley,  14  Bnsh, 
698;  Fish  r.  Clark,  2  Lans.,  178;  49  N.  Y. 
122 ;  Allen  v.  Sacki-idcr,  37  N.  Y.  341. 

91 


6 
i 


CHAPTER  VII. 

THE  MUTUAL  BENEFIT  BAILMENT  (CONTINUED)  THE  PLEDGE. 


Section  50.  Pledge  Defined. 

51.  Distinction  between  Pledge  and  Chattel  Mortgage. 

52.  What  may  be  Pledged. 

53.  The  Pledged  Thing. 

54.  The  Pledgor's  Title. 

55.  The  Debt  or  Engagement. 
50.  The  Increase  and  Profits. 

57.  The  Pledgee's  Eiglit  of  Transfer. 

58.  Tlie  Pledgee's  Duties  in  Regard  to  the  Pledge. 

59.  The  Pledge  an  Additional  Remedy. 

60.  The  Right  to  Redeem. 

61.  The  Pledgee's  Duty  to  Re-deliver. 

62.  The  Pledgee's  Riglit  to  Sell  on  Default. 

63.  Pledgee  Cannot  Purcliase. 

64.  Irrepilar  Sale  may  be  Ratified. 

65.  Power  to  Sell  not  Mandatary. 

66.  Pledgee  not  Liable  for  Consequences  of  Sale,  When. 

67.  The  Pledgor's  Right  to  the  Surplus. 

68.  The  Pledgee's  Right  of  Action. 

69.  The  Pledgor's  Right  of  Action. 

70.  The  Pledge,  How  Extinguished. 

71.  Effect  of  Death  of  Either  Party. 


§  50.  Pledge  Defined.  —  A  pledge  or  pawn  is  the 
bailment  of  a  chattel  as  security  for  some  debt  jr  en- 
gagement.^ Both  the  terms  pignus  and  radiuni  were 
used  in  the  Latin,  the  former,  it  seems,  having  the 


1  Laws.  Rights,  Kern.  &  Vr.,  §  1751. 
Mr.  Etlwards  defines  pkMlgo  (Bail.  §  188) 
as  something  put  in  pawn  or  "Icpositeil 
with  another  as  secnrity  for  the  repay- 
ment of  money  borrowed,  or  for  the  per- 
formance of  some  agreement  or  obliga- 
tion ;  it  is  legally  defined  to  be  a  bail- 
ment of  goods  by  a  debtor  to  liis  creditor 
to  be  kept  till  the  debt  is  discharged. 
Lord  Holt,  in  Coggs.   r.  Bernard,  says: 

92 


the  fourth  sort  of  bailments  is  when 
goods  or  chattels  are  delivered  to  an- 
other as  a  pawn,  to  be  security  for  money 
borrowed  of  him  by  the  bailor;  and  this 
is  called  in  Latin  vadiuvt,  and  in  English 
a  pawn  or  pledge.  Chancellor  Kent  calls 
it  a  bailment  or  delivery  of  goods  by  a 
debtor  to  his  creditor,  to  be  kept  till  the 
debt  be  discharged. 


CH.  VII.]  THE  MUTUAL  BENEFIT  BAILMENT. 


§51 


wider  meaning  of  anything  given  as  security  for  an 
obligation — as,  for  example,  hostages  for  the  perform- 
ance of  the  stipulations  of  a  treaty.  The  word  Pawn, 
in  our  language,  has  an  "unpleasant  savor,"  and  the 
word  Pledge,  or  in  more  recent  transactions.  Collateral 
Security,  though  all  three  are  synonymous  in  legal 
meaning,  is  mostly  used  to  describe  this  particular 
transaction  at  the  present  day.^ 

§  51.  Distinction  Between  Pledge  and  Chattel 
Mortgage. — A  pledge  differs  from  a  chattel  mortgage 
in  two  respects: 

1.  The  title  to  the  thing  delivered  in  pledge  does  not 
pass  as  it  does  in  the  case  of  a  chattel  mortgage,  this, 
as  we  have  seen,  being  the  characteristic  feature  of  all 
bailments.-    The  delivery  is  made  as  a  security  for  the 


1  Stearns  v.  Marsli,  4  Denio.  227;  47  Am. 
Dec.  24s.  Says  Mr.  Schouler:  "The  terms 
'pawn'  and 'pledge'  in  our  language  ap- 
pear interchangeable,  and  law- writers  so 
employ  them:  See  2  Bla.  Com.  §in7;  a 
Ula  Com.  §§  274,  2H0.  But  'pawn,'  which 
is  the  more  characteristic  of  the  partic- 
ular transaction,  and  was  almost  always 
applied  in  the  hnmbler  days  of  this  bail- 
ment, keeps  its  unpleasant  savor;  for  the 
modern  disposition  has  been  to  use  in 
its  stead  'pledge,'  a  term  admitting  of 
various  senses,  some  of  them  tnily  Nor- 
man, where  the  transaction  may  be  de- 
tached from  the  three  golden  balls.  And, 
once  more,  commercial  paper  and  per- 
sonalty of  other  incorporeal  kinds  arc 
now  found  so  highly  convenient  for 
pledge,  that  brokers  and  bankers  have 
put  us  lately  to  using  still  another  term, 
that  of  'collateral  security.'  We  may 
find  this  third  expression  used  in  some  of 
the  late  reports  in  an  uncertain  way,  as 
though  courts  were  bewildered  in  dis- 
tinguishing between  the  pledge  and  chat- 
tel mortgage :  Fraker  v.  Keevc,  36  Wis. 
85;  Smithurst  v.  Edmunds,  14  N.  J.  Eq. 
408;  First  Nat.  Bank  v.  Kelly,  57  N.  Y.  34. 
From  some  judicial  expressions,  one 
might  infer  that  a  transfer  by  way  of  col- 


lateral security  was  thought  someUiing 
altogether  distinct  from  a  pledge;  See 
Coulter,  J.,  in  Chambersburg  Ins.  Co.  v. 
Smith,  11  Pa.  St.  120.  But  the  better  view 
is  that  'collateral  security'  embraces,  in 
the  broadest  sense,  both  pledge  and 
chattel-mortgage  transactions,  while 
more  appropriately  applied  to  the  for- 
mer class,  and  in  the  strict  phrase  to 
pledges  of  incorporeal  personalty  alone. 
'Collateral  security'  is  certainly  the  most 
patrician  of  expressions  applied  to  the 
present  bailment.  And  now  that  pledge 
may  be  made  of  great  things  as  well  as 
small,  of  mercantile  as  well  as  household 
articles,  the  capitalist  who  advances 
money  on  staple  merchandise,  bonds,  or 
commercial  paper,  refuses  blood-brother- 
hood with  the  primitive  lender  upon  gar- 
ments, furniture,  and  jiersonal  orna- 
ments; and  while  the  pawnbroker  still 
plies,  under  license,  the  individual  trade 
with  misery  and  humble  station,  a  cor- 
poration, organized  for  a  wider  reach  of 
the  same  business,  sinks  the  pawn,  and 
is  styled  a  'collateral  loan  company,'  or 
'merchandise  security  bank.'  "  Schoul. 
Bail.  §  159. 

2  Brown  v.  Bement,  8  .Johns,  96;  Farks 
V.  Hall,  2  rick.  211 ;  Langdon  v.  Bncl,  9 

93 


^!5 


§51 


THE  MUTUAL  BENEFIT  BAILMENT.  [PART  I. 


payment  of  a  debt,  or  for  the  performance  of  some  other 
act;  and  the  party  making  the  delivery  retains  a  power 
of  redemption.  In  a  chattel  mortgage,  the  title  is  con- 
veyed, subject  to  the  condition  of  a  defeasance  in  case 
of  payment;  Avhilst  the  title  to  goods  deposited  in 
pledge  remains  in  the  person  making  the  deposit,  only 
a  special  property  passing  to  the  pledgee.*  If  the 
pledge  is  not  redeemed  by  the  time  stipulated,  it  does 
not  become  the  property  of  the  pledgee,  but  the  latter 
is  obliged  to  take  legal  proceedings  to  obtain  author- 
ity to  dispose  of  it,  or  he  must  sell  it  with  certain  for- 
malities for  the  account  of  the  pledgor.- 

2.  In  a  mortgage,  the  chattels  mortgaged  need  not 
be  deliA-^red  to  the  mortgagee,  but  may,  as  they 
usually  do,  remain  in  the  hands  of  the  morrgagor.^  In 
a  pledge,  however,  delivery  of  the  thing  pledged  is  es- 
sential,* either  to  the  pledgee  or  to  a  third  person  for 


Wend.  80 ;  Patchin  r.  Pierce,  12  Wend.  Gl ; 
Ackk-yr.  Finch,  7  Cow.  2!10;  Atwater  r. 
Mower,  10  Vt.  75;  rarshiil]  r.  Eggart,  f)2 
Barb,  mi;  Ash  r.  Savape,  r.  N.  IF.  545; 
Hcjiandt'.  IJadper,  35  Cal.  404.  "A  -ail- 
ical  distinction  between  a  pledge  and  a 
mortgage  is,  that  liy  a  mortgage  the  gen- 
eral title  is  transferred  to  the  mortgagee, 
snbject  to  bo  revested  by  performance  of 
the  condition,  but  in  case  of  a  pledge  the 
pledgor  retains  tlie  general  title  in  him- 
self, and  parts  with  the  possession  for  a 
special  purpose" ;  Walker  v.  Staples,  5 
Allen,  34. 

1  Cortelyon  r.  Lansing,  2  Caines  Cas 
200;  Brownell  v.  Hawkins,  4  Barb.  401; 
Badlam  v.  l"ucker,  1  Pick.  ,S97;  U  Am. 
Dec.  202;  Brewster  r.  Hartley,  37  Cal.  15; 
99; Am.  Dec.  2,'!7;  Dewey  d."  Bowman,  8 
Cal.  145;  Garlick  r.  James,  12  Johns.  146; 
7  Am.  Dec.  294;  Sims  v.  Canlleld,2  Ala. 
555;  BaiTow  r.  Paxton,  5  Johns.  258;  4 
Am.  Dec.  354;  McLean  r.  Walker,  10 
.Johns.  471 ;  FJastman  i-.  Avery,  2.'i  Me.  248; 
Day  r.  Swift,  in  Me.  368 ;  Gleason  r.  Drew, 
9 Me.  82;  C,..ard  v.  Atlantic  Ins.  Co.,  1 
Pet.  449;  Gay  v.  Moss,  35  Cal.  125;  Haven 

94 


V.  Low,  2  \.  n.  13;  9  Am.  Dec.  25;  Harris 
r.  Lombard,  GO  Miss.  29 ;  Dewey  r.  Bow- 
man, 8  Cal.  145;  Belilen  v.  Perkins,  78  111. 
449;  Wilkie  v.  Day,  141  Mass.  68.  G  N.  E. 
Kep.  542. 

2  See  post,  §  62. 

3  Kdw.  Hail.  §189;  Story  Bail.,  §  287; 
Schoul.  Bail.  §§  1G2,  Ui3 ;  Holmes  v.  Crane, 
2  Pick.  GIO;  Langdon  r.  Buel,  9  Wend.  80. 

4  Brewster  v.  Hartley,  37  Cal.  25;  99 
Am.  Dec.  2,S7;  Wilsim  r.  Little,  2  X.Y.  447; 
51  Am.  Dec.  ,307;  Goldstein  r.Hort,, SO  Cal. 
,372;  Homes  r.  Crane,  2  Pick.  GIO;  Bonsey 
r.  Amee,  8  Pick.  236;  Pinkerton  r.  R.  R. 
Co.,  42  X.  H.  421;  Owens  v.  Kinsey,  7 
Jones,  245;  Beeman  v.  Lawtou,  37  Me. 
543;  Casey  r.  Cavaroc,  96  U.  S.  4G7; 
Fletcher  r.  now.ard,  2  Aiken,  115;  16  Am. 
Dec.  G86;Lncketts  !•.  Townscnd,  3  Tex. 
119;  49Am.  Dec.  723;  First  Nat.  Bank  r. 
Nelson,  .38 Ga.  .391 ;  95  Am.  Dec.  400 ;  Nevan 
t'.  Ronp,  8  Iowa,  207 ;  Walcott  v.  Keith,  22 
N.  n.  19G;  Propst  r.  Uosemau,  4  Jones, 
130 ;  Ilaskinsr.  J'atterson,  1  Edm.  Sel.  Cas. 
120;Ceasr.  Bramley,  18  Hun,  187;  Cor- 
bett  V.  Underwood,  83  111.  324;  25  Am. 
Rep.  392;  Wright  f.  Ross,  36  Cal.  414; 
Smyth  V.  Craig,  3  W.  &  S.  14. 


CH.  VII.]  THE  MUTUAL  BENEFIT  BAILMENT. 


51 


bim.^     Though  an  agreement  to  give  property  in  pledge 
is  valid  between  the  parties,  and  may  be  enforced  by 
specific  performance  in  some  cases,  and  if  not  per- 
formed, will  always  give  a  right  to  damages  for  its 
breach,  yet  until  the  delivery   is  made,   intervening 
rights  will  have  priority  over  the  pledgee — such  as  at- 
taching or  execution  creditors  of  the  intended  pledgor, 
or  his  general  creditors  if  he  meantime  dies  insolvent, 
or  is  forced  into  bankruptcy.-     And  though  tlie  old  rule 
was  that  property  not  in  existence,  but  merely  in  ex- 
tectancy,  could  not  be  the  subject  of  a  pledge,^  such 
attempts  to  pledge  are  now  upheld  as  executory  agree- 
ments to  be  performed  when  the  things  do  come  into 
existence.^ 

Incorporeal  property,  however,  which  is  incapable 
of  manual  deliver^-,  may,  nevertheless,  be  pledged;  and 
in  such  case,  the  transfer  of  the  interest  may  be  made 
in  such  way  as  is  possible.^  "It  has  been  doubted 
whether  incorporeal  things,  like  debts,  money  in 
stocks,  etc.,  which  cannot  be  manually  delivered,  were 
the  proper  subjects  of  a  pledge.  It  is  now  held  that 
they  are  so;  and  there  seems  to  be  no  reason  why  any 
legal  or  equitable  interest  whatever,  in  personal  prop- 
r.;  ,y  not  be  pledged;  provided  the  interest  can  be 
'"■■■  actual  delivery,  or  by  written  transfer,  into  the 
A  or  within  the  power  of  the  pledgee,  so  as  to  be 
available  to  him  for  the  satisfaction  of  the  debt. 


ern 
h.ir: 


1  Brown  v.  Wsrrrn,  43  N.  U.  430. 

2Schoul.  Bail.  §  IT'.i;  City  Fire  Ins.  Co. 
V.  Olinstcad,  ,S3  Conn.  iH);  Sietlcnbach  i*. 
Biley,  111  N.  Y.  560;  Gettings  v.  Nelson, 
86111.591.  InParshall  v.  Eggcrt,  54  N. 
Y.  18,  it  is  said  that  it  is  only  a  creditor 
who  acquires  a  specific  right  to  or  lien  on 
the  thing  pledged,  who  may  prevent  the 
pledgee's  interest  in  an  undelivered 
chattel  from  attaching, 

3Edw.  Bail.  §  193;  Story  Bail.  §  294; 
Bonscy  v.  Amce,  8  Pick.  236 ;  Strickland 


r.  Turner,  7  Kx.  20S;  ."^mithnrst  v.  Kd- 
niuuds,  14  N.  J.  Eq.  408. 

■tWaldie  V.  l)oll,2'.)  Cal..5.'55;  Smithnrst 
V  Edmunds,  supra ;  JIaconiber  v.  I'arker, 
14Pick.  497;  Collins  Appeal,  107  Pa.  St. 
590;  52  Am.  liep.  479;  Smith  f.  Atkms,  18 
Vt.  461. 

fi  Brewster  v.  Hartley,  37  Cal.  25;  99 
Am.  Dec.  237;  Welch  r.  Mandeville,  1 
Wheat.  236;  (ioUlsteiu  c.  Ilort,  30  Cal. 
376 ;  Uasbrouck  v.  Vandervoort,  <  Sandf. 
78. 

96 


m 


§51 


THE  MUTUAL  BPJNEFIT  BAILMENT.  [PART  I. 


Goods  at  sea  may  be  passed  in  pledge  by  a  transfer  of 
the  muniments  of  title,  as  by  a  written  assignment  of 
the  bill  of  lading.  This  is  equivalent  to  actual  posses- 
sion, because  it  is  a  delivery  of  the  means  of  obtaining 
possession.  And  debts  and  choses  in  action  are  capa< 
ble,  by  means  of  a  written  assignment,  of  being  con- 
veyed in  pledge.  The  capital  stock  of  a  corporate  com- 
pany is  not  capable  of  manual  delivery.  The  scrip  o" 
certificate  may  be  delivered,  but  that  of  itself  does  not 
carry  with  it  the  stockholder's  interest  in  the  corporate 
funds.  Nor  does  it  necessarily  put  that  interest  under 
the  control  of  the  pledgee.  The  mode  in  which  the 
capital  stock  of  a  corporation  is  transferred  usually  de- 
pends on  its  by-laws."* 

And  a  constructive  delivery  will  always  do,  as  for 
example,  the  delivery  of  the  receipt  of  a  warehouse- 
man,^ or  other  bailee,^  of  the  pledged  property  in  his 
custody;  the  transfer  of  the  bill  of  lading  of  the  goods,"* 
or  the  delivery  of  a  bank  book  containing  a  statertient 
of  the  amount  of  the  pledged  deposit.'"'  Whatever,  in 
short,  will  in  the  eye  of  the  law,  be  considered  sufficient 
to  transfer  the  possession  of  the  property,  is  enough.** 
The  property  may  be  too  bulky  for  mapual  delivery,  in 
whi(^h  case  a  symbolical  delivery  is  sufficient.'     And 


1  Wilson  t>.  T.ittic,  2  N.  Y.  447;  51  Am. 
Doc.  307;  Kisbct  v.  Trust  Co.,  4  Woods 
404. 

2  British  Colnniliia  Uk.  v.  Marsliall,  8 
Pawy.  29;  St.  Louis  Blc.  r.  Koss  0  Mo. 
(A pp.)  399. 

3  Cartwriplit  r.  Wilmerding,  2t  X.  V. 
.■121;  Whitney  v.  Tibbetts,  17  Wis.  .S59; 
Bank  of  Rochester  r.  Jones,  4  N.  V.  497 ; 
05  Am.  Dec.  290. 

4  Cartwright  v.  Wilmerdiug,  24  N.  Y. 
521 ;  Tibbetts  r.  Flanders,  18  N.  11.  284 ; 
Whitney  t).  Tibbetts,  17  Wis.  359;  Nevan 
r.  Roup,  8  Iowa,  207;  Dows  v.  National 
Ex.  Bank.BlU.  S.  filH;  First  Nat.  Bank 
V.  Kelly,  57  X.  Y.  34;  Pettit  r.  First  Nat. 

96 


Bank,  4  Bnsh,  3.S4;  Meyerstein  i'.  Barber, 
h.  11.  2  Com.  P.  38;  4  11. 1..  Cas.  317;  Mul- 
ler  1.'.  Pondir,  6  Lans.  480. 

*  Boynton  v.  Payrow,  67  Me.  587. 

fi  Story  Bail.  §  277;  Sumner  v.  Hamlet, 
12  I'ick.  76;  Tibbetts  v.  Flanders,  18  N. 
n.  284;  Desha  t).  Pope,  6  Ala.  690;  41  Am. 
Dec.  76;  Parsons  V.  Overmire,  22  111.  58; 
Heard  i'.Brew(!r,  4  Daly  136. 

'  As,  tor  example,  pointing  out  to  the 
pledgee  a  nun)ber  of  logs  in  a  river  as 
the  pledged  property.  Jewett  r.  Warren, 
12  Mass.  300;  7  Am.  Dec.  74.  Or  the  do- 
livery  of  a  key  of  a  warehouse.  Whit- 
taker  V.  Sumner,  20  Pick.  405. 


on.  VII.]  THE  MUTUAL  BENEFIT  BAILMENT. 


§53 


where  the  pledgee  has  the  thing  already  in  possession  in 
another  character,  the  contract  of  pledge  transfers  to 
him  possession  as  pledgee  by  operation  of  law.* 

§  52.  What  May  be  Fledged. — Every  kind  of  per- 
sonal property,  corporeal  or  incorporeal,  capable  of 
transfer  by  delivery  of  the  thing  itself,  or  by  an  assign- 
ment of  a  written  evidence  of  its  existence,  may  be  the 
subject-matter  of  a  pledge.^  The  ordinary  chattels 
personal,  i.  e.,  those  articles  which  the  owner  may  carry 
with  him  from  place  to  place,  which  may  be  vended, 
worn  or  consumed,  the  horse  in  his  stable,  or  the  sheep 
in  his  pasture;  the  stove  in  a  man's  house,  or  the  books 
in  his  office;  the  ring  on  his  finger,  or  the  watch  in  his 
pocket;  the  goods  on  his  shelves,  or  the  money  in  his 
till — these,  and  all  things  like  them  may  be  pledged.^ 
So  may  bills  of  exchange,  and  promissory  notes,'*  bonds,^ 
and  certificates  of  stock,"  chattel  mortgages,^  deposits 
in  bank,^  insurance  policies  (fire,  life,  or  marine),**  judg- 
ments,*** leases,*'  mortgages,*-  and  title  deeds.*^ 


1  story  Bail.  §  297;  Cnshmnn  v.  Hayes, 
46111.  146;  Smith  r.  Mott,  76  Cal.  171. 

2  Laws.  Eights,  Bern.  &  I'r.  §  1756. 

3  Laws.  Rights,  Rem.  &  I'r.  §1339; 
Honser  t;.  Kemp,  3  Pa.  St.  209;  Steams  v. 
Marsh,  i  Donio,  227;  47  Am.  Dec.  248; 
Frost  r.  Shaw,  3  Ohio  St.  270. 

*  Williamson  V.  Culpepper,  16  Ala.  211; 
60  Am.  Dec.  175;  Applcton  r.  Donaldson, 
3  Pa.  St.  381 ;  Whiter.  Phelps,  14  Minn. 27; 
Loaisiana  State  Rank  v.  Gareunie,  21  La. 
Ann.  655;  Garlick  v.  James,  12  Johns. 
146 ;  7  Am.  Dec.  294 ;  McLean  v.  Walker,  10 
Johns.  471 ;  Bowman r.  Wood,  15  Mass.  534. 

6  Strong  V.  National  Bank  Ass'n,  46  N. 
Y.  718 ;  Loomis  v.  Stave,  72  111.  623 ;  Ring- 
ling  i\  Kohn,  4  Mo.  App.  69;  Morris  Canal 
Co.  r.  Lewis,  12  N.  J.  Eq.  323;  White 
Mountain  R.  R.  Co.  v.  Bay  State  Iron  Co., 
SOX.  II.  67;  Potter  ».  Thompson,  10  R.  1. 1; 
Talty  V.  Freedmen's  Sav.  Inst.  93  U.  S.  321. 

8  Jarvis  v.  Rogers,  13  Mass.  106;  15  Mass. 
389;  Uasbronck  v.  Vandervoort,  4  Sand. 
74;  Brewster r.  Hartley,  37  Cal.  16; 99  Am. 
Dec.  237 ;  Wilson  t>.  Little,  2  N.  Y.  443 ;  61 
Am.  Dec.  807;  Heath  r.  Silverthom  Co., 89 
Wis.  147;  Worthington  v.  Towney,  84  McL 

8 


182;  Pinkerton  v.  R.  R.,  42  N.  H.  424; 
Conynghani's  Appeal,  57  Pa.  St.  474; 
Thompson  v.  Toland,  48  Cal.  99;  Fisher  v. 
Brown,  104  Mass.  259;  6  Am.  Rep.  236; 
Rozet  r.  McClellan,  48  111.  845;  95  Am. 
Dec.  551 ;  Markham  v.  Jaudon,  41  N.  Y.  286. 

I  Franker  r.  Reeve,  36  Wis.  35;  Jerome 
V.  McCarter,  94  V.  S.  734. 

8  Boynton  v.  Payrow,  67  Me.  587. 

8  Soule  V.  Union  Bank,  45  Barb.  Ill; 
West  V.  Carolina  Ins.  Co.,  81  Ark.  476; 
Merrifleld  v.  Baker,  9  Allen,  29;  Bruce  v. 
Garden,  L.  R.  5  Oh.  32 ;  Edwards  v.  Mar- 
tin, L.  R.  1  £q.  121 ;  Latham  v.  Chartered 
Bank,  L.  R.  17  Eq.  205;  Wells  f.  Archer, 
10  Serg.  &  R.  412 ;  13  Am.  Dec.  682 ;  Lnckey 
V.  Gannon,  87  How.  Pr.  134;  Boardman  v. 
Holmes,  124  Mass.  438. 

10  Hanua  v.  Holton,  78  Pa.  St.  384;  21 
Am.  Rep.  20. 

II  Dewey  v.  Bowman,  8  Oal.  145. 

12  Campell  v.  Parker,  9  Bosw.  822;  Je- 
rome V.  McCarter,  94  U.  S.  734 ;  Wright  v, 
Ross,  36  Cal.  414 ;  Ponce  ti.  McElvy,  47  Cal. 
164. 

13  re  Kerr,  L.  R.  8  Eq.  381. 

97 


§53 


THE  MUTUAL  BENEFIT  BAILMENT.  [PART  I. 


The  exception  is  that  small  class  of  property  which, 
on  grounds  of  public  policy,  cannot  be  the  subject  of 
contract,  whether  of  sale  or  assignment,*  as  for  ex- 
ample, the  salary  of  a  public  oflBcer^  or  a  cause  of  action 
growing  out  of  a  personal  wrong.^ 

§  53.    The  Pledged  Thing.— The  pledge  is  primar- 
ily a  security  for  all  owing  by  the  pledgor  to  the 
pledgee,  so  that  a  part  payment  leaves  it  still  a  security 
for  the  rest.*    Where,  however,  the  pledge  is  made  for 
a  specific  debt  or  purpose,  it  may  be  held  for  that  alone" 
and  cannot  be  retained  for  subsequent  or  other  debts 
unless  they  we^-e  made  upon  the  credit  of  the  pledge, 
or  such  was  the  intention  of  the  parties.®    Several  se- 
curities may  be  pledged  for  the  same  debt;  in  which 
case  the  creditor  has  the  right  to  elect  as  to  which  he 
will  enforce,''  and  is  not  obliged  to  proceed  against  a 
particular  one,  unless  such  has  been  the  agreement  of 
the  parties.^     Each  is  liable  for  the  whole  debt,"  but  if 
the  sale  of  part  satisfies  the  debt,  the  pledgee  can  pro- 
ceed no  further  to  sell  the  others.***  And  he  may  release 
one  article  or  thing  without  releasing  all." 


1  Laws.  Contr.,  §§  314, 315. 

2  Story  Bail.,  §293;  Schonl.  Bail.  §170; 
Moffat  r.VanDoren,4  Bosw.  609. 

3  Pindell  v.  Grooms,  18  B.  Mon.  501. 

*  Story  Bail.  §  301 ;  Post  v.  Tradesman's 
Bank,  28  Conn.  420;  Phillips  v.  Thomp- 
son, 2  Johns.  Ch.  418 ;  7  Am.  Dec.  535 ; 
Eichelbcrger  D.  Mnrdock,  10  Md.  373;  69 
Am  Dec.  140. 

«  Fndlpy  v.  Bowen,  103  111.  633;  Wooley 
».  Louisville  Bank,  81  Ky.  527;  James, 
Appeal,  89  Pa.  St.  64;  Phillips  v. 
Thompson,  2  Johns.  Ch.  418;  7  Am.  Dec. 
6.38;  St.  John  r.  O'Connell,  7  Port.  466; 
Gilliat  r.  Lynch,  2  Leigh,  493;  Duncan  v. 
Brcnnan,  83  N.  Y.  487;  Wyckoffti.  An- 
thony, 9  Daly,  417;  Bonghton  v.  U.  S.  12 
Ct.  of  CI.  331 ;  Dobree  v.  Xorcliffe,  23  L.  T. 
(N.  S.)  552;  Hobinsonv.  Frost,  14  Barb. 536. 
«Fostt).  Tradesman's  Bank,  i8  Conn. 
420;  TentoniaNat.  Bank  v.  Loeb,  27  La. 

98 


Ann.  110;  Jarvis  v.  Uogers,  15  Mass.  389; 
Pcttibone  v.  Griswold,  4  Conn.  168;  10 
Am.  Dec.  106;  Van  Blorcom  v.  Broadway 
Bank,  37  N.  Y.  540. 

7  .Schoul.  Bail.  §  178;  citing  Union  Bank 
V.  Laird,  2  Wh<'at.  390;  Cullnm  v.  Eman- 
uel, 1  Ala.  23 ;  34  Am.  Dec.  757 ;  Buchanan 
V.  International  Bank,  78  III.  500;  An- 
drews d.  Scotton,  2  Bland,  629;  Bait.  etc. 
Ins.  Co.  V.  Dalrymplc,  25  Md.  267 ;  Bald- 
win V.  Bradley,  67  111.  32. 

8  Brick  V.  Freehold  etc.  Co.,  37  N.  J.  L. 
307;  Comstock  v.  Smith,  23  Me.  202;  Bu- 
chanan r.  Int.  Bank,  78  111.  600;  Morris 
V.  Kales,  43  Hun.  393. 

8  Story  Bail.  §  314. 

10  Newport  etc.  Bridge  Co.  v.  Dotiglass, 
12  Bnsh,  673 ;  Rohile  v.  Stidger,  60  Cal. 
207;  Van  Blarcom  v.  Broadway  Bank,  37 
N.  Y.  540;  Andrews  V,  Scotten,  2  Bland, 
«29;  Jcsnpt).  City  Bank,  14  Wis.  381. 

"  Story  Bail.  §  314. 


CII.  VII.]  THE  MUTUAL  BENEFIT  BAILMENT. 


§54 


§  54.  The  Pledgor's  Title.— A  pledgor,  like  the 
ordinary  vendor  of  chattels,  impliedly  warrants  that 
he  has  title  to  the  goods  pledged.'  If  he  undertake  to 
pledge  property  that  belongs  to  another,  without  his 
consent,  he  cannot  afterwards,  so  long  as  the  owner  re- 
frains from  claiming  it,  seek  to  have  it  restored  until 
his  debt  is  discharged.-  So,  too,  though  he  is  not  the 
owner  at  the  time  the  pledge  is  made,  if  he  subse- 
quently acquire  the  property,  by  what  title  soever,  his 
ownership  will  be  deemed  to  relate  back  to  the  time  of 
the  contract,  and  the  pledge  will  stand  good.^  While 
one  may  pledge  whatever  things  belong  to  him  in  pres- 
ent possession,  yet  in  regard  to  those  things  in  which 
he  has  a  property  which  may  be  divested,  or  which  is 
subject  to  incumbrance,  he  cannot  confer  on  the 
creditor,  by  the  pledge,  any  further  rights  than  he  had 
himself.  He  pledges  tlio  Interest  which  he  possesses, 
subject  to  the  superior  right  of  the  incumbrancer,  or 
person  who  owns  the  reversionary  interest  in  the  sub- 
ject of  the  bailment.*  The  exception  to  this,  as  well  as 
to  the  case  of  the  pledgor  having  no  title  at  all,  is  nego- 
tiable paper  with  nothing  on  its  face  to  put  the  pledgee 
on  inquiry  as  toi  the  true  title.^  It  is  essential  that  the 
person  making  a  pledge  of  goods  as  security  for  a  debt 
should  own  them,*'  or  at  least  have  authority  to  de- 
posit them  in  pledge.'     A  thief,**  a  bailee,"  or  one  hav- 


1  Story  Bail.  §  364 ;  Mairs  v.  Taylor,  40 
Pa.  St.  446;  Goldstein  v.  Ilort,  30  Cal. 
372. 

zCioldstein  v.  Hort,  30  Cal.  372;  Jarvis 
V.  Rogers,  13  Mass.  105. 

3Edw.  Bail.  §192;  Goldstein  v.  Hort, 
tujira ;  Parshall  t-.  Eggart,  54  N.  Y.  18. 

4  Hoare  v.  Parker,  2  Term.  Uep.  376 ; 
Story  Bail.  §  275;  Dewey  v.  Bowman,  8 
Cal.  145. 

6  5!tory  Bail.  §  296 ;  Fisher  r.  Fisher,  9h 
Mass.  303;  Beallc  v.  Sonlhern  Rank,  57 
Ga.  274;  Francis  v.  Josepb«  3  Edw.  Ota. 


1S2;  Coddington  v.  Bay,  20  Johns.  63?; 
I'ayn«  !••  Bi-nsU\v,8  Cal.  260;  68  Am.  Dec. 
318;  Uobinsonr.  Smith,  14  Cal.  98;  Man- 
ning V.  McClnre,  36  111.  496;  Naglee  v. 
Lyman,  14  Cal.  454. 

6  Story  Bail.  §  271 ;  Edw.  Bail.  §  192. 

7  Jarvis  v.  Kogers,  13  Mass.  105;  Sweet 
t).  Brown,  5  Pick.  178;  Smith  r.  Mott,  76 
Cal.  171 ;  18  Pac.  Rep.  260 ;  Wright  v,  Sol- 
omon, 19  Cal.  64;  79  Am.  Dec.  197;  Cox  v. 
McGnire,  26  111.  (App.)  315. 

H  Packer  v.  Gillies,  2  Camp.  336. 
9  Thrall  v.  Lathrop,  30  Vt.  307;   78  Am. 
Dec.  406. 

99 


9 

a 


J 

4 


§56 


TIJK  MUTUAL  BKXKFIT  BAILMKNT.  [PART  I. 


ing  only   ii  qualified    proporty    in  tlio  floods,'  i-annot 
I)k'dge  them  so  as  to  alt'cct  the  right  of  the  true  owner. 

§  55,  The  Debt  or  Engagrement. — The  debt  or  en- 
gagement for  Avhith,  as  security,  the  thing  is  delivered 
to  the  pledgee,  may  be  that  of  the  pledgor  or  of  some 
third  person.-  It  may  be  a  general  or  a  specific  indebt- 
edness, a  d'<»bt  now  owing  or  to  be  created  in  the  fu- 
ture/' or  both,'  or  the  pledge  nuiy  be  restricted  to  a  por- 
tion of  a  present  or  future  debt,''  or  to  obligations  for 
a  fixed,  or  for  an  indefinite  period." 

The  pledge  covers,  or  is  security  for,  not  only  the 
debt  itself,  but  interest  upon  it  and  necessary  charges 
in  its  preservation  or  in  realizing  upon  it.'' 

§  56.  The  Increase  and  Profits. — The  fruits  or  in- 
crease of  the  pledge  are  deemed  a  part  of  it,  and  belong 
to  the  pledgee,  as  the  pledge  does,  as,  for  example,  the 
young  of  a  pledged  animal,**  the  interest  on  pledged  se- 


1  Agnew  V.  Johnson,  22  Pa.  St.  471 ;  62 
Am,  Dpi'.  30.^. 

2  Story  Bail.  §  300;  Schoul.  Bail.  §  171 ; 
Brick  V.  Freehold  Co.,  37  N.  ,1.  I-.  307; 
Stewart  v.  Davis,  18  luil.  74;  Wilcox  v. 
Fairliaven  Bank,  7  Allen,  270 ;  Blackwood 
V.  Brown,  .S4  Mich.  4  ;  (iilson  r.  Martin,  49 
Vt.  474;  Third  Nat.  Bank  v.  Boyd,  44  Md. 
47;  22  Am.  Hep.  3.');  .Jewettr.  Warren,  12 
Mass.  300;  7  Am.  Dec.  74.  Where  the 
owner  of  the  pledfied  article  is  not  the 
debtor  he  stands  in  the  situation  of  a 
surety  entitled  on  payment  to  be  substi- 
tuted to  all  the  creditor's  rights,  and  any 
change  in  the  contract  of  suretyship 
which  will  discharge  a  surety  will  release 
and  discharge  the  property  so  held  as 
collateral.  Price  v.  Dime  Sav.  Bank,  124 
111.  317;  7  Am.  St.  Uep.  367;  1,5  N.E.  Kep. 
764. 

3  Berry  v.  Gibbons, L.  R.  8  Ch.  747 ;  Eich- 
elberger  v.  Murdock,  10  Md.  873 ;  G9  Am. 
Dec.  140 ;  Third  Nat.  Bankf.  Boyd,  44  Md. 
47;  22  Am.  Rep.  35;  Badlam  v.  Tucker,  1 

100 


Pick.  .180;  11  Am.  Dec.  202;  Holbrook  v. 
Baker,  n  Me.  ,SO!l;  17  Am.  Dec.  230;  U.  S.  v. 
N'eal,  14  Fed.  Uep.  707;  Vernon  f.  De 
Wolf,  4  Mason.  123;  Blarcomv.  Broadway 
Bk.,9Bosw.  532. 

4  Badlam  v.  Tucker,  1  Pick.  398 ;  11  Am. 
Dec.  202 ;  Holbrook  v.  Baker,  5  Me.  309;  17 
Am.  Dec.  230;  D'Wolt  v.  Harris,  4  Masf. 
C15 ;  Conard r,  Atlantic  Ins.  Co.,  1  Pet.  448 ; 
Eichelberger  v.  Murdock,  10  Md.  373;  G9 
Am.  Dec.  140. 

«  Fridley  v.  Bowen,  103  111.  12. 

«  United  States  r.  Uooc,  3  Cranch,  73; 
Stearns  v.  Marsh,  4  Denio,  227 ;  47  Am. 
Dec.  248;  Story  Bail.,  §  300;  Merchants 
Nat.  Bk.  V.  Uall,  83  X.  Y.  338 ;  38  Am.  Rep. 
434. 

7  Story  Bail.,  §  .306 ;  In  re  Kerr's  Policy, 
L.  R.  8  Eq.  331 ;  Hurst  v.  Colcy,  22  Fed. 
Rep.  183 ;  Pickersgill  v.  Brown,  7  La.  Ann. 
298 ;  Blake  v.  Paul,  29  Leg.  Int.  366. 

8  Story  Bail.,  §  292 ;  Schoul.  Bail.,  §  170; 
Smith  V.  Atkins,  18  Vt.  461. 


CII.  VII.]  THE  MUTUAL  nKNKFIT  BAILMENT. 


§C7 


cui'ities,  or  the  dividends  on  pledged  stoek.^  But  the 
increase,  fruits  or  profits  are  held  by  the  pledgee  as  the 
thing  itself  is;  he  cannot  appropriate  them  to  his  own 
use,  and  h(-  is  bound,  on  the  contrary,  to  give  an  ac- 
count of  them  to  the  debtor,  or  to  deduct  them  from 
what  may  be  due  hiuL-  Tf  the  profits  of  the  pledge, 
while  in  the  pledgee's  hands,  have  been  siiHicient  to 
discharge  the  debt,  the  pledgor  is  entitled  to  receive 
back  the  pledge  intact.'* 

^  57.    Tlio  Pletlffce's  Ri^ht  of  Transfer.— Except 

under  the  power  of  sale  on  default,  the  ])ledg(?e  has  no 
right  to  alienate  the  pledge,  beyond  his  interest  in  it.* 
Ilis  right  of  transfer  is  inoi'e  extensive  than  that  of 
other  bailees,  for  he  may  make  a  bailment  of  it  by  de 
liv(U'lng  it  into  the  hands  of  another  for  safe  keeping, 
or  he  nuiy  pledge  it  for  his  own  debt."'  But  such  trans- 
fers are  of  his  interest  in  the  chattel  onlv;  for  to  at- 
tempt  to  i)ledge  property  beyond  the  pledgee's  own  de- 
mand, or  to  make  transfer  as  though  he  were  the  abso- 
lute owner,  is  a  breach  of  trust,  and  a  fraud  upon  the 
original  ])ledgor,"  and  can  give  no  right  to  the  trans- 
feree beyond  that  which  the  pledgee  had,  unless  the 
pledgee  had  been  held  out  as  the  pledgor's  agent,  or 


1  Swnsey  r.  It.  H.  Co.,  1  Iliiphos,  17; 
MorrillfUi  r.  Baker,  0  Allen,  2!i;  Ilennan 
f.  Maxwell,  47  X.  Y.  (S.  O.)  S4";  Oaty  r. 
Ilnlliiiay.K  Mo.  (App.  11«).  It  is  jfener- 
•illy  helil  that  one  to  whom  stock  of  a 
corporation  is  pledged  may  vote  it.  Ex 
parte  Willcoeks,  7  Cow.  4u2;  17  Am.  Dee. 
425;  New  York  etc.  It.  K.  Co.  r.  Mehnylcr, 
38  Barb.  542,  per  Injrraham,  .J.  Hut  seo 
McDaniels  r.  Flower  Hrook  Manfs.  Co., 
22  Vt.  274.  He  is  not  entitled  like  the 
owner  to  notice  of  meetings  of  the  cor- 
poration.   Id. 

2  Hunsaker  r.  Stnrpis,  2oeal.  142;  IIou- 
ton  V.  Ilalliday,  2  Miirph.  Ill ;  5  Am.  Dec. 
622 ;  State  v.  .Vdams,  76  Mo.  605. 


3  Gerou  I'.  Geron,  16  Ala.  558;  50  Am. 
Deo.  141. 

4  Story  Bail,  §322;  Lncketts  v.  Town- 
send,  3  Tex.  119;  49  Am.  Dec.  723. 

n  .story  Bail,  §§  314,  322-324;  Mores  r. 
Conliam,  Owen,  123;  Whitakcr  i:  Sum- 
ner, 20  I'ie.k.  399;  2  Kent's  Com.  579; 
Sheltoni'.  French,  33  Conn.  489;  Belden 
r.  Perkins,  78  111.  449;  Ashton's  Appeal, 
73  Pa.  St.  143;  Whitney  r.  I'eay,  24  Ark. 
22;  Van  Blarcom  r.  Broadway  Bank,  .'57 
N.  Y.  540;  First  Nat.  Bk.  v.  Boot,  107 
Ind.  224 ;  48  N.  K.  Rep.  105. 

6  Story  Bail.  §  324 ;  Gonld  v.  Central 
Trast  Co.,  6  Abb.  X.  C.  381;  Easton  v. 
Hodges,  18  Fed.  Hep.  677. 

101 


'0 

i 


I 

I' I 


§57 


THE  MUTUAL  BENEFIT  BAILMENT.  [PAET  I. 


otherwise,  the  transferee  had  a  right  to  assume  he 
had  authority.^     The  pledgee  may  assign  the  debt  for 
which  he  holds  a  security  in  pledge,  and  transfer  by 
actual  delivery  his  interest  in  the  goods  bailed;  so  that 
the  purchaser  will  acquire  precisely  the  rights  which 
he  possessed,  subject  to  the  same  obligations.^      The 
pledgee,  then,  may  assign  his  interest,  without  destroy- 
ing the  original  lien,  or  giving  the  pledgor  a  right  to 
reclaim  on  any  other  terms  than  he  might  before  such 
as^-ignment.'^     If,   for   example,   a   pledgee   of   stock 
pledged  to  him  to  secure  a  loan  to  the  pledgor,  pledges 
the  stock  to  another  for  his  own  debt,  the  original 
pledgor  cannot  recover  it  without  paying  his  dt  bt.^ 
And  on  the  other  hand,  the  original  pledgor  has  a  right 
to  redeem  it  on  payment  of  his  own  debt,  and  the  second 
pledgee  canuct  hold  it  for  more.^ 

It  may  be  questioned  whether,  under  some  circum- 
stances, and  as  to  certain  kinds  of  chattels  whose  in- 
trinsic qualities  were  presumably  regarded,  such  as  a 
valuable  work  of  art,  or  private  garments,  a  fair  con- 
struction of  the  pledge  contract  would  admit  of  i)ass- 
ing  the  custody  on  to  strangers  at  all,  at  the  mere  dis- 


1  Crocker  r.  Crockpr,  HI  \.  Y.  507 ; 
8S  Am.  Dec.  291;  I'almtag  r.  Dontrick, 
59  Cal.  154;  4'i  Am.  Kep.  215;  68  Am. 
Dec.  291;  Osdon  r.  I.athrop,  65  N.  Y. 
168;  Thompson  r.  Toland,  48  Cal.  99; 
Conynfiham's  Appeal,  57  Pa.  St.  474; 
Merchants'  Bank  r.  Livingston,  74  N. 
Y.  22.S;  I'rall  v.  Tilt,  27  N.  J.  i;i|.  ;i93; 
West  Transfi  r  Co.  v.  :\Iarshall,  4  Abb. 
App.  575;  Stone  r.  lirowu,  54  Tex. 
330;  McXeil  v.  Tenth  \at.  15k.,  4r. 
N.  Y.  32"i;  7  Am.  Rep.  ,S4I.  Negotia- 
ble paper  transferred  to  a  bona  fide  pur- 
chaser without  notice  is  an  exception  to 
this  nile :  Story  IJail.  §§  322.  323 ;  Coit  v. 
UnribiTt,  5  Cal.  260;  fi3  Am.  Dec  128; 
Moms  Canal  Co.  v.  Fisher,  9  N.  .J.  K(|. 
667;  64  Am.  Dec.  423;  Shiav  i.  Spencer, 
100  Mass.  382 ;  97  Am.  Dec.  107 ;  Ashton 
t>.  Atlantic  Kank,  3   Allen,  217.    Stock, 

102 


however,  is  not:  McXeil  r  Tenth  Nat. 
Bank,  40  Barb.  .59;  Ashtou's  Appeal,  T.! 
I'a.  St.  1.53.  Story's  statement  ot  tile  law 
as  (lilferent  from  this  (Story  Bail.  §322)  is 
criticised  by  Jlr.  Schouler:  (Bail.  §211.) 
See  Littli;  v.  Barker,  1  lloff.  Ch.  487. 

-'Kemp  V.  Westbrook,  1  Vesey  178; 
Uateliir  r.  Vance,  2  Const.  (S.  C.)  239; 
Maeoiiiberr.  Barker,  14  Tick.  497;  Hunt 
r.  Holton,  13  I'ick.  216. 

3  Bnllard  r.  Billings,  2  Vt.  .309;  Macom- 
berr.  I'arker,  13  I'ick.  497;  Hunt  r.  ilol- 
tou,  12  I'ick.  21();  Ferguson  r.  I'nion  I-^ir- 
naee  Co.,  9  Weiiil.  355. 

4  Xew  York  etc.  R.  ('o.  v.  Davies,  38 
Ilan.  477;  Bradley  i'.  I'arks,  83  111   169. 

(iTorreyr.  Harris,  12  Daly  385;  Agncw 
V.  Johnson,  22  I'a.  St.  471 ;  62  Am.  Doc. 
803, 


ClI.  VII.]  THE  MUTUAL  BENEFIT  BAILMENT. 


§58 


eretion  of  the  pledgee,  apart  from  his  pledgor's  special 
permission.^ 


§  58.  The  Pledgee's  Duty  in  Regard  to  the 
Pledge. — The  pledgee  impliedly  stipulates  that  he  will 
take  ordinarj  tare  of  the  goods  pledged.  Since  the 
bailment  is  beneficial  to  the  pledgee  by  securing  the 
paj'ment  of  his  debt,  and  to  the  pledgor  by  procuring 
him  credit,  it  is  necessary  that  he  to  whom  a  pledge  is 
bailed  shall  take  ordinary  care  of  it;  and  he  will,  con- 
sequently, be  responsible  for  ordinary  neglect.  The 
obligativ)!!  of  the  pledgee  to  preserve  the  property  is 
equal  to  that  of  the  prrson  who  \\i\H  it  in  his  custody 
on  a  bailment  for  hire.-  lie  is  not,  therefore,  liable  for 
the  loss  oi  the  pledge  through  theft,  robbery,  fire  or 
causes  for  which  a  btiilee  for  hire  is  not  responsible.^ 
A  creditor,  who  held  a  policy  of  life  insurance  on  his 
debtor's  life,  has  been  held  guilty  of  negligence  in  not 
keeping  up  the  payment  of  the  premiums.* 

But  the  pledgee's  duty  is  not  only  to  keep  the  pledge 
with  ordinary  care;  for  in  tlie  case  of  choses  in  action 
he  is  bound  to  use  reasonable  diligence  to  -cure  their 
payment  when  due,  and  any  failure  on  his  part  to  take 
steps  in  the  ordinary  course  of  collection,  whereby  they 
are  rendered  valueless,  will  make  him  res])onsible  for 
the  loss,"  unless  the  contract  between  the  parties  ex- 


C 
2 


r 

m 


1  Schonl.  Bail.  201.  8cc  Cockbnrn,  C. 
.1.,  and  Blackburn,  .1.,  in  Oonalti  f.  Suck- 
ling, L.  K.  1  Q.  B.  .W.),  Gl.-),  61S. 

2  Third  Nat.  Bank  v.  Boyd,  44  Md.  47; 
22  Am.  Hup.  ;'.''•  Krie  Hank  v.  Smith,  3 
Brewst.  9;  .Sc.  Ix)sky  v.  Davidson,  fi  Cal. 
CM;  Girard  Firu  Ins.  Co.  v.  Marr,  4G  I'u. 
St.  604;  I'etty  v.  Overall,  42  Ala.  145;  94 
Am.  Dec.  O.'JS;  Com.  Bank  of  Now  Or- 
leans t'.  Martin,  1  La.  .\nn.  344 ;  45  Am. 
Dec.  87;  Scott  r.  Crews,  2  S.  C.  622; 
Manry  v.  Coyle,  34  Md.  2,S5;  Second  Nat. 
Bank  v.   Ocean  Nat.  Bank,  11  Blatchf. 


362 ;  Fleming  v.  Northampton  Nat.  Bank, 
62  IIow.  I'r.  175. 

3  Petty  i:  Overall,  42  Ala  14,");  94  Am. 
Dec.  635;  Ho'iling  v.  Oattrell,  6  Jur. 
N.  S.  96,  note ;  Fleming  v.  Northampton 
Bk.,  62  IIow.  Pr  177;  Cutting  v,  Marlor, 
7H  N.  Y.  454;  Bochm  f.  IT.  S.  20  Ot.  ot  CI. 
231 ;  Bank  r.  Marshall,  11  Fed.  Uep.  19. 

4  Soule  v.  Union  Bank,  45  Biirb.  111. 

s  Douglass  r.  Muudine,  57  Tex.  344; 
Whitin  V.  Paul,  13  R.  I.  40;  Uarper  v. 
Second  Bank,  12  Lea,  678 ;  Semple,  etc. 
Manfg.  Co.  v.  Detwiler,  30  Kas.  386 ;  2  Pac 

103 


§59 


THE  MUTUAL  BENEFIT  BAILMENT.  [PAET  I. 


eludes  the  idea  that  the  pledgee  is  to  do  more  than  re- 
ceive payment  when  tendered.*  Nor  is  there  any  duty 
to  collect  after  the  debt  is  paid,-  and  the  pledgee  has  no 
right  to  compromise  v.  ith  the  maker  of  a  note  and  take 
a  less  sum  than  it  calls  for.^ 


§  69.    The  Pledge  an  Additional  Remedy.— The 

pledge  affords  the  pledgee  an  additional  remedy;  and 
does  not  supersede  his  right  of  action  for  the  debt* 
He  may,  in  such  action,  attach  the  pledged  property  in 
his  hands,^  and  judgment  recovered  against  the 
pledgor  until  it  is  paid,  does  not  require  the  pledgee  to 
surrender  the  pledge."    If  the  pledge  does  not  bring 


Eep.  511 ;  Wells  v.  Wolls,  SH  Vt.  1 ;  Wakc- 
inanr.  (Jowdy,  10  Bosw.  208;  Koborts  v. 
Thompson,  14  Ohio  St.  1;  Sli  Am.  I)e<\ 
465;  May  v.  Sharp,  4!)  Ala.  140;  Nolaiid 
f.    Clark,    10   n.    Mnn.    2.'iO;    Canlin   v. 
Jonos,  2S  (ia.  17.');   Hceves  v.  rioiifjh,  41 
Intl.  204;  liiMTOws  V.  HaiiRs,  .^4  Jlich.  .104; 
Goodall  !•.  Uiohardson,  14  \.  II.  567;  Word 
V.  Mortran,  5  Snccd,  7!);  .Jones  v.  Haw- 
kins, 17  Ind.  .WO;  I.ambertson  v.  Wisdom, 
li  Minn.  2.T2;  1)0  Am.  Dec.  ,S01 ;  Lazier  v. 
Xevin,  3  W.  Va.  622;  Whitten  r.  Wright, 
34  Mieh.  02;  Hussellf.  Hester,  10  Ala.,S.S,'); 
Mullen  V.   .Morris,  2  I'a.  St.  85;   Kiee  r. 
Benediet,  lOMieh.  i;!2;  Barrow  r.  Rhine- 
lander,  3  .Johns.  Ch.  614:  Miller  r.  Get- 
tysbnrp  Bank,  8  Watts,  \:<'>;  32  Am.  Dee. 
449;  Hanna  v.  Holton   78  I'a,  St.  XM;  21 
Am.  Rep.  20:  Smith  r.  Miller,  43  N.  V.  171 ; 
3  Am.  I{ep.  6;)0;  Wakem.m  r.  Gowily,  10 
Hosw.  208;  Whitten  v.   Wripht,  .S4  .Mich. 
92;  SCO   Kennedy  v.  Rosier,  71    la.  671; 
23  N.  W.  Bep.  226;  Westplial  r.  I,iidlow, 
2  McCrary  50.5;  ^farsehiietz   v.    Wright, 
50    Wis.    175;    6  N.   W.   Rep.    511.      The 
pledgee  ot  a  negotiable  seenrity  has  a 
right  to  colleet  the  sniii,  and  sue  for  it  if 
necessary,  in  his  own  name.    Jones  r. 
Hawkins,  17  Ind.  550 ;  Hilton  f.  Waring,  7 
Wis.  492;  Nelson  r.  Wellington,  5  Bosw. 
178 ;  Bowman  v.  Wood,  15  .Mass.  534 ;  Lob- 
dell  V.  Merchants'  Bank,  33  Mieh.  408; 
Uonser  v.  Hoiiser,  43  (ia.  415;  White  v. 
Phelps,  14  Minn.  27 ;  100  Am.  Dec.  190.    If 
a  note  was  withont  consideration  be- 

104 


twecn  the  maker  and  the  pledgor,  and 
was  pledged  by  the  latter,  the  pledgee 
can  ojily  recover  on  it  for  the  amount  of 
his  debt.  Fisher  i'.  Fisher,  98  Mass.  .S03; 
White  r.  J'helps,  14  Minn.  27;  100  Am. 
Dee.  100;  Lobdell  i-.  Merchants'  Bank,  33 
.Mich.  408;  llonserr.  llouser,  43  (ia.  415; 
Mayo  V.  Mayo,  28  111.  428;  Stoddard  v. 
Kimball,  6  Cash.  469;  Lawrence  v.  .Me- 
Calmont,  2  How.  420. 

1  Miller  v.  (iettysburg  Bank,  8  Watts, 
192;  34  Am.  Dec.  449. 

2  Overlock  i:  Hills,  8  Me.  383. 

3  (iarlick  v.  James,  12  Johns.  146;  7 
Am.  Dee.  294;  Depny  r.  Clark,  12  Ind. 
427  ;  Union  Trust  (  o.  r.  Rigdon,  93  111.  458. 

4  (iranite  Bk.  v.  Uichardson,  7  Mete. 
407;  Story  Bail..  §  315;  Elder  r.  Rouse,  15 
Wend.  18:  West  r.  Carolina  Ins.  Co.,  31 
Ark.  476;  Bank  ot  Kntland  r.  Woodniff, 
34  Vt.  89;  Dngan  v.  Spr:.  .:io,  2  Ind.  600; 
Sonoma  Valley  Bank  v,  Uill,  59  Cnl.  107; 
Jones  V.  Scott,  10  Kan,  33. 

•■i  Bnckr.  Ing.'rs<dl,  U  Met.  226;  Aren- 
dale  i:  ilorgan,  5  Sn<'ed.  7o:i ;  Whitwell  v. 
Brigham,  19  I'iek.  U; ;  or  other  property 
of  the  pledgor:  Taylor  v.  Cheever,  6 
Gray,  146. 

fi  Smith  f.  Strout,  63  Me.  205;  Darst  v. 
Bates,  95  111.  403;  Charles  r.  Coker,  2  S. 
C.  122;  Archibald  r.  Argall,  53  111.  307; 
Butterworth  v.  Kennedy,  5  Bosw.  143. 
Kven  a  promise  to  ilo  so  would  generally 
be  unenforceable  in  that  it  would  lack  a 
consideration.    Smith  v.  Stront,  mpra. 


OH.  VII.]  THE  MUTUAL  BENEFIT  BAILMENT. 


§61 


I 


enough  at  sale  to  pay  the  debt,  the  balance  is  a  per- 
sonal charge  against  the  debtor,  and  may  be  recovered 
as  such.* 

§  60.  The  Right  to  Redeem. — The  pledgor  has  a 
right  to  redeem,  at  any  time  before  the  pledge  has  been 
lawfully  disposed  of,  by  sale  or  otherwise,  according 
to  the  contract,^  for  even  an  agreement  that  the  pledge 
shall  be  irredeemable,  would  be  void  on  grounds  of 
public  policy,  as  contrary  to  equity  and  good  con 
science,  and  as  opening  the  door  to  oppression  and 
fraud.^  A  reasonable  notice  of  intention  to  redeem 
must,  however,  be  given,*  and  a  proper  tender  of  the 
debt."'"'  And  the  pledgee  is  allowed  a  reasonable  time 
after  the  tender  before  making  deliver}'." 

The  right  to  redeem  is  not  lost  by  the  failure  to  pay 
the  debt  at  the  time  stipulated,  for  this  does  not  pass 
the  title  to  the  pledgee,  as  we  have  seen,  but  simply 
gives  him  a  right  to  sell.^  Nor  does  the  statute  of  lim- 
itations run  against  the  pledge;*^  though  if  too  long  a 
time  is  allowed  to  elapse,  i\w  court,  may  refuse  re- 
demption, the  presumption  being,  in  such  a  case,  that 
the  matter  has  been  settled,  and  the  rights  of  the  par- 
ties ail  justed  between  themselves." 

§61.     The  Pledgee's  Duty  to   Re-deliver.— On 

])ayiiient  of  the  debt  for  which  the  pledge  has  been 


1  Faulkner  v.  riill,  104  Mass.  18H. 

2  Story  Hail.,  §  .S4,') ;  Schonl.  Bail.,  § 224 ; 
IJigi'low  r.  YoiinK,  ^0  (ja.  1'21. 

■I  K(Uv.  Itail.,  §  2(;0;  Story  Hail.,  §  .S45; 
I>ucki'lts  V.  Towusend,  3  Tex.  119 ;  4'J  Am. 
Dec.  72,S 

4  tieiu't  r.  Uowland,  45  Hiirb.  5G0;  30 
How.  I'r.  .%0. 

«  Dunham  r.  .Jackson,  G  WeniJ.  22. 

<l  Uiinliani  i-.  .Jackson,  >  Wend.  22; 
McAlla  V.  Clark,  6S  (ia.  63;  Dewart  r. 
Masscr,  40  I'ii.  St.  302 ;  Vauglian  v.  Watt, 
6  M.  it  W.  492. 

t  Cortelyou  v.  Lansinjf,  2  Caincs.  Cas. 


200;  Uailroad  Co.  v.  Iron  Co.,  50  N.  n.  57; 
Walter  v.  Smith,  1  Dowl.  &  U.  1 ;  5  IJ.  & 
Aid.  4». 

8  Kemp  V.  Westbrook,  1  Ves.  278;  see 
lleizcnstein  r.  Manjuardt,  37  N.  W.  Rep. 
506  (la.)  ante,  §  29;  Whelanti.  Kinsley,  26 
Ohio  St.  131. 

B  Story  Hail.,  §  346;  Schoul.  Bail.,  §§ 
224,  225 ;  Waterman  v.  Brown,  31  Pa.  St. 
161;  White  Mountain  U.  U.  Co.  v.  Bay 
State  Iron  Co.,  50  X.  IX.  37;  Whelan  f. 
Kinsley,  26  Ohio  St.  131;  Hancock  v. 
Franklin  Ins.  Co.,  114  Mass.  165. 

105 


§61 


THE  MUTUAL  BENEFIT  BAILMENT.  [PART  I. 


given,*  or  a  proper  tender,-  the  pledgee  is  bound  to 
re-deliver  the  thing  pledged,  for  by  such  acts  the 
pledgor  acquires  an  immediate  and  absolute  right  of 
property  in  it;^  and  upon  a  refusal,  the  pledgee  becomes 
a  wrongdoer,  and  holds  the  pledge  at  his  own  risk,*  and 
it  is  no  excuse  that  the  thing  has  subsequently  been 
lost  without  his  fault,  or  become  worthless.^  He  must 
restore  the  very  things  received;  and  cannot  offer  in 
their  place,  articles  of  a  similar  kind  or  value,*^  unless 
they  are  things  not  capable  of  identification,  and  which 
the  parties  have  intended  should  go  into  a  common 
stock.'^ 


1  Lawrence  r.  Maxwell,  53  X.  Y.  19; 
Mayo  f.  Avery,  18  Cal.  309;  Fisher  r. 
Urown,  lot  Mass.  259;  R  Am.  Kep.  23.1; 
MerrifleUi  v.  Haker,  9  Allen,  29;  Gibson  i'. 
Martin,  49  Vt.  474 ;  Ilonton  r.  Ilolliday,  2 
Mnrph.  Ill;  5  Am.  Dec.  522;  Stearns  r. 
Marsh,  4  Denio,  227 ;  47  Am.  Dec.  248 ;  Bry- 
son  r.  Kayner,  25  Md.  424 ;  90  Am.  Dec.  69. 

2  McLean  r.  Walker,  10  .Johns.  471 ;  Law- 
rence r.  Maxwell,  53  N.  Y.  19;  McCalla, 
r.  Clark, 55  Ga.  53;  Doak  v.  I?auk,  fi  Ireil. 
,S09;  Geront'.  Geron,  15  Ala.  558;  no  Am. 
Dp-  HH  ;  Potter  v.  Thompson,  10  U.  L  1 ; 
Kittera's  Ks.,  17  Pa.  St.  416. 

3  And  of  course  its  increase.  Gibson  v. 
Martin,  49  Vt  474. 

4  Loughbrough  r.  McNevin,  74  C.Tl.2.50; 
RAm.  St.  Hep.  435;  14  I'ac.  Uep.  369;  15 
Pac.  Uep.  773;  Cass  r.  Iligenbotam,  lOit 
N.  Y.  248;  3  X.  E.  Rep.  189;  Oregon  &c 
Trans.  Co.  v.  Uilmers,  20  Fed.  Hep.  717; 
Hardy  i'.  Jaodon.  1  Hobt.261. 

■"'  Sttiart  r.  Itigler,  98  Pa.  St.  80. 

«  Dykers  v.  Allen,  7  Ilill,  497;  42  Am. 
Dec.  87. 

7  Hortont'.  Morgan,  0  Dner,  fil;  Salttis 
r.  Gerrin,  3  Hosw.  257;  Hub  )clli-.  Drexel, 
11  Fed.  Uep.  115.  In  Gilpin  v.  Howell,  5 
Pa.  St.  41,  45  Am.  Dec.  720,  it  is  said:  "It 
is,  in  general,  true,  that  where  the  pledge 
is  distinctive  in  its  character,  an<l  there- 
fore capable  of  being  recognized  among 
other  things  of  like  nature,  or  where  a 
mark  is  set'upon  it  with  a  view  to  its  dis- 
crimination, the  pledgee  is  bound  to  re- 

lOG 


deliver  the  identical  article  pledged,  and 
cannot  .-.ubstitute  something  of  like 
kind,  unless  so  authorized  by  the  con- 
tract, liut  I  think  there  is  a  manifest 
<li (Terence,  tc  necessitate,  where  the 
thing  pledged,  from  its  very  nature,  is 
incapable,  in  itself,  of  identilication,  if 
once  mingled  with  other  things  of  the 
same  kind.  In  such  case,  it  is  the  duty  of 
the  pledgor  to  put  a  nmrk  upon  it,  by 
which  it  may  be  distinguished  ;  for,  as  is 
said  in  Nourse  r.  Prime,  4  Johns.  Ch.  490, 
H  Am  Dec.  (iOO.  if  a  person  will  suffer  his 
property  to  go  into  a  common  mass  with- 
out making  some  provision  for  its  identi- 
lication, he  has  no  right  to  ask  more  than 
that  the  (piautity  he  put  in  should  always 
be  there  and  ready  for  him.  l!y  a  just 
llction  of  law,  that  residuum  shall  be 
presumed  to  be  the  portion  he  put  in. 
The  good  sense  of  these  remarks,  made 
in  immediate  reference  to  a  pledge  of 
shares  of  bank  stock,  recomuiinds  'hem 
to  our  adoption.  They  are  repeated  by 
Chancellor  Kent,  in  the  same  case  re- 
ported in  7  .Johns.  Vh.  69,  and  noticed 
with  approbation  by  Nelson,  0.  ,r.,  in 
Allen  i:  Dykers,  3  Hill,  593.  Speaking  of 
Nourse  v.  Prime,  he  says:  '.\s  it  ap- 
peared the  defendants  always  had  on 
hand  the  rerinisite  quantity  of  shares,  the 
law  will  presume  the  shares  so  on  hand, 
from  time  to  time,  were  the  shares  depos- 
ited, because  the  parties  have  not  re- 
duced the  shares  to  any  more  certainty.' " 


CH.  VII.]  THE  MUTUAL  BENEFIT  BAILMENT. 


62 


«^ 


§  62.    The  Pledgee's  Right  to  Sell  on  Default. 

— The  nonpayment  of  the  debt,  or  nonperformance  of 
the  engagement  which  the  pledge  is  given  to  secure, 
does  not  forfeit  it,  but  simply  clothes  the  pledgee  with 
authority  to  sell  the  pledge,  reimburse  himself  for  his 
debt,  interest  and  expenses,  and  hold  the  residue  for 
the  pledgor.  In  ancient  times,  the  pledgee,  unless 
there  was  a  special  agreement  to  the  contrary,  was 
obliged  to  judicially  foreclose  the  pledge,^  but  this  is 
not  now  required  in  all  cases,  the  pledgee  being  gen- 
erally permitted,  without  judicial  process,  t.  sell  the 
pledge.^  But  as  the  law  looks  to  the  protection  of  the 
pledgor,  this  right  is  subject  to  several  conditions 
which  must  be  strictly  performed  by  the  pledgee. 
These  are: 

1.  The  pledgor  must  be  called  upon  to  redeem  by 
paying  his  debt,  in  order  that  he  may  have  an  oppor- 
tunity to  prevent  a  sale  if  he  can.^  It  seems  that 
where  the  time  of  payment  is  fixed  by  the  contract,  a 
demand  is  not  necessary,  such  a  requisite  being  called 
for  in  those  cases  only  where  there  is  no  fixed  day  of 
])ayment,  or  where  there  has  been  an  indefinite  exten- 
sion of  the  time,*  but  this  distinction  has  been  criti- 
cised.'"'    The  denmnd  is  necessarv,  even  though  the  con- 


1  Kdw.  Rail,  §  248. 

2  loll-  V.  Diuiii'ls  IS  III.  (App.)  23;  Rob- 
inson c.  Iliirloy,  11  III. -1.0;  7i)  Am.  Dec. 
4;)7;  (JdfiL'U  r.  Latin- )p,  &y  N.  V.  158; 
Sliiugu  ('.  lU'rintrlii,  'Hi  Cal.  577;  Lewis  v. 
Mott,.'i6N.  Y.  395;  Hancock  f.  Franklin 
Ins.  Co  ,  114  Mass,  151!;  Kichards  v.  Davis, 
5  Ta.  L.  J.  471 ;  Merchants'  liank  v. 
Thompson,  133  Mass.  482;  Water  I'owcr 
Co.  r.  Itrown,  22  Kan.  676;  McDowell  t: 
Chicaso  Steel  Works,  124  111.  491;  7  Am. 
St.  Kep.  .381 ;  16  N.  E.  liep.  854;  Canllelil 
V.  Minn.  etc.  Assn.,  14  Fed.  Rep.  801 ;  15 
Id.  260;  I'igot  r.  Cnbley,  15  Com.  IJ.,  N. 
S.,  701;  10  Jur.,  N.  S.,  318. 


;i  Wilson  r.  Little,  2  X.  Y.  443;  51  Am. 
Dec.  ;107;  Stokes  i-.  Frazicr,  72  111.4-28; 
Gay  V.  Moss,  34  Cal.  123;  Robertson  r. 
Lippincott,  1  I'hila.  308;  Sitgi-eaves  i\ 
Farmers'  Bank,  4".).  Pa.  St.  369;  Bryan  v. 
Ualdwin,  52  X.  Y.  233;  McDowell  r.  Chi- 
capo  Steel  Works,  124  111.  491;  7  Am.  St. 
Rep.  .381 ;  16  N.  K.  Rep.  854. 

4  Chouteau  t'.  Allen,  70  Mo.  290 ;  Mar- 
tin I'.  Reed,  11  Com.  B.,  N.  S.,  730;  Wilson 
t'.  Little,  2  X.   Y.  443;  51  Am.  Dec.  307 
Stokes  V.  Frazier,  72  111.  428;    Wadsworth 
y.  Thompson,  8  111.  423. 

5  See  Stearns  r.  Marsh,  4  Dcnio.  237; 
47  Am.  Dec.  248. 

107 


§62 


THE  MUTUAL  BENEFIT  BAILMENT.  [PART  I. 


tract  stipulates  that  the  pledgee  may  sell  without  no- 
tice.' 

2.  The  pledgor  must  be  personally  notified  of  the 
time  and  place  of  the  sale,  in  order  that  he  may  have 
an  opportunity  to  prevent  the  sacrifice  of  his  property ,= 
and  this,  whether  the  debt  is  payable  on  a  fixed  day  or 
not,=^  or  whether  the  pledge  was  made  before  or  after 
the  debt  had  matured;*  unless  the  contract  gives  a 
right  to  sell  without  notice.^ 


1  Wilson  f.  Little,  2  N.  Y.  4ii;  51  Am. 
Dpc.  307. 

2  IJiivis  V.  Fiiiik,  m  I'll.  St.  243;  80  Am. 
Dec.  ol'J;  Williken  r.  Delion,  10  ]5osw. 
325;  Stevens  r.  Utnlbiirt  Bank,  31  Coun. 
14G;  Nelson  r.  Ivlwanls,  40  Bail).  2711; 
Brass  v.  Wortli,  40  Barb.  G48;  C^^^hman 
f.  Hayes,  46  111.  145;  Conyngham's  Ap- 
peal, 57  I'a.  St.  474 ;  Bryan  r.  Baldwin,  52 
X.  Y.  2;«;  Washlnirn  r.  I'oml,  2  Allen, 
474;  Wheeler  v.  Xewboiilil,  Ki  X.  Y.  392; 
Mange  v.  Ileringlii,  "".  Cat.  577;  Mark- 
ham  f.  Jaudon,  41  X.  Y.  235;  Luekelts  r. 
Townsend,  3  Tex.  llil;  49  Am.  Dee.  723; 
Maryland  etc.  Ins.  Co.  v.  Dalryniple,  25 
Md.  242;  89  Am.  Dee,.  779;  Ogden  i: 
I.athrop.  05  N.  Y,  162;  Lewis  r.  Graham, 
4  Abb.  I'r.  110;  Lewis  v.  Varnum,  12  Abb. 
308;  Wilson  v.  Little,  2  X.  Y.  448;  51  Am. 
Dec.  .S07i  Stearns  i\  Marsh,  4  Denio,  227; 
47  Am.  Dec.  248 ;  De  Lisle  r.  I'riestman,  1 
Browne  (Pa.)  176;  Diller  v.  Brubaker,  52 
I'a.  St.  498;  91  Am.  Dec.  177;  Strong  v. 
Xat.  Bank,  45  X.  Y.  71H;  .leanes*  Appeal, 
116  I'a.  St.  573;  2  Am.  St.  Kep.  573;  11  Atl. 
Hep.  862. 

3  "It  is  said  that  the  law  '..akes  a  dis- 
tinction between  the  ca>'    of   a   pledge 


for  a  debt  payable 
where  the  debt  ■' 
until  a  future  <'.: 
case  the  cred.. 
a  redemption  '  . 
though  in  the  fo. . 


;!'• 


no 


and  one 

!      ':nicr 

'     ill  ftr 


at 


'  Hat  .' 
■v,i..nir 
'.  i-  aoi  1 
..iei-  ^M  ■  ■ 
there  must  be  sneh  Ut.i  ,•..,.  .  ..  ,,  »- 
tice  must  be  given.  Xon-payment  of  the 
debt  at  the  stipulated  time  did  not  work 
a  forfeiture  of  the  pledge,  eitlier  by  the 
civil  or  at  the  comuum  law.  It  simply 
clothed   the  pledgee   with   authority  to 

108 


sell  the  pledge  and  reimburse  himself 
for  hii.  debt,  interest,  and  expenses;  and 
the  resi(hie  of  the  proceeds  of  the  sale 
then  belonged  to  the  pledgor.  1  llnd  no 
authority  countenancing  the  distinction 
contended  for;  but  on  the  contrary,  I 
understand  the  doctrine  to  be  well  set- 
tled, that  whether  the  debt  be  due  pres' 
ently  or  upon  time,  the  rights  of  the  par- 
tie*  to  the  pledge  are  such  as  have  been 
stated :  C'ortelyon  r.  Lansing,  2  Caines 
Cas.  201;  2  Kent's  Com.,  5th  ed.,  §§581, 
582;  4  Kent's  Com.,  5th  ed.,  §§  138,  139; 
Tucker  r.  Wilson,  1  I*.  Wins.  261;  Lock- 
wood  V.  Kwer,  2  Atk.  303;  Johnson  v. 
Vernon,  1  Bail.  527  ;  Perry  r.  Craig,  3  Mo. 
516;  Parker  r.  Braneker,  22  Pick.  40;  De 
Lisle  t-.  I'riestman,  1  Browne  (Pa.)  176; 
•Story's  Kq.S  1008;  Story  Bail.  §§309,310, 
346;  Hart  i:  Ten  Kyck,  2  .Johns.  (Jh.  100; 
Patchin  r.  Pierce,  12  Wend.  61 ;  Garlick 
f.  James,  12  Johns.  146;  7  Am.  Dec.  294. 
Xor  do  I  see  any  reason  tor  such  a  dis- 
tinction. In  either  case  the  right  to  re- 
deem equally  exists  until  a  sale ;  the 
pledgor  is  equally  interested,  to  see  to  it 
that  the  pledge  is  sold  for  a  fair  price. 
The  time  when  the  sale  may  take  place 
is  as  uucertain  in  the  one  case  as  in  the 
other;  both  depend  upon  the  will  of  the 
pledgee,  after  the  lapse  of  the  term  of 
credit  in  the  one  case,  and  after  a  reason- 
able time  in  the  othc^r,  unless,  indeed, 
the  pledgor  resorts  to  a  court  of  e()uity  to 
quicken  a  sale."  Stearns  r.  Marsh,  4 
Denio,  227  ;  47  Am.  Dec.  248. 

4  Edw.  Bail.  §  249. 

.'"Taft   v.   Church,   39   X.   K.   Bep.  283 
(Mass,). 


i3 


CH.  VII.]  THE  MUTUAL  BENEFIT  BAILMENT. 


§62 


Where  personal  notice  cannot  be  given — it  being 
borne  in  mind  that  formal  notice  is  unnecessary  if  the 
pledgor  have  actual  knowledge  in  any  other  way* — a 
judicial  sale  by  a  bill  in  equity  must  be  resorted  to,- 
and  a  judicial  sale  is  said  to  be  the  most  advisable  in 
all  cases  where  the  pledges  are  of  large  value,  on  the 
ground  that  courts  watch  any  other  sale  with  uncom- 
mon jealousy  and  vigilance;  and  any  irregularity  may 
bring  its  validity  into  question.^  The  power  to  sell 
even  where  express  and  a  right  to  a  judicial  foreclosure 
are  cumulative;  the  pledgee  may  pursue  either  remedy.* 

3.  The  sale  must  be  public  and  not  private/'  in  order 
that  more  bidders  being  thereby  necessarily  attracted, 
a  better  price  will  be  likely  to  be  realized,"  though,  by 
agreement,  the  sale  may  be  private.^ 

If  the  pledgee  sell  Avithout  the  foregoing  requisites 
to  a  valid  sale,  the  pledgor  may  recover  the  value  of 
it  from  him,  without  tendering  the  debt;  because  by  the 
wrongful  sale,  the  pledgee  incapacitates  himself  to  per- 
form his  part  of  the  contract,  that  is  to  return  the 


m 


1  Alexandria  K.  Co.  v.  Burke,  22  Gratt. 
254 ;  or  notice  be  given  to  his  agent ;  Pot- 
t<'rf.  Thoinpson,  10 1{.  I.  1.  A  newspaper 
notice  woulJ  he  iueflfecttial  unless  it 
were  shown  to  have  been  bronght  home 
to  the  pleilgor.  .Schotil.  Hail.,  §  208;  see 
Stokes  V.  Frazier,  72  111.  428 ;  City  Bank  of 
Uuciue  t'.  Babcock,  1  Holmes,  180. 

2  Schoul.  Bail.  §  208 ;  Garlick  v.  .James,  12 
Johns.  147;  7  Am.  Dee.  204;  Collin  r.  Chi- 
cago Co.,  G7  Barb.  319;  Kobinsou  v.  Hur- 
ley, 11  Iowa,  410;  '(9  Am.  Dec.  497;  Smith 
ti.  Coale,  34  Leg.  Int.  58;  12  I'hila.  177. 

3  Story  Bail.  §  310;  Boynton  v.  I'ayrow, 
67  Me.  557;  Duncomb  v.  K.  Co.  84  N.  Y. 
190. 

4  Co.  In  r.  Chicago  etc.  Const  Co.,  G7 
Barb.  .S37;  4  Uun.  625;  Donohoe  v.  Gam- 
ble, 38  Cal.  341 ;  99  Am.  Dec.  399. 

«  M'ashburn  v  I'ond,  2  Allen,  474 ; 
Wheeler  v.  Newbould,  16  N.  Y.  392; 
Strong  f.  National  Merchants'  Bank,  45 


N.  Y.  718;  Willonghby  v.  Comstock,  3 
11111,389;  Bryson  v.  Uayner,  25  Md.  424; 
90  Am.  Dec.  69;  Diller  v.  Bmbakcr,  52  Pa. 
St.  498;  91  Am.  Dec.  177;  .Jeanes'  Appeal, 
116  Pa.  St.  573 ;  2  Am.  St.  Ucp.  624  ;  11  Atl. 
Rep.  862.  A  sale  on  a  brokers'  board  has 
been  held  a  private  sale:  Markhain  v. 
Jaudon,  41  N.  Y.  235 ;  Dykers  v.  Allen,  7 
Uill,  497;  42  Am.  Dec.  89;  Brass  v.  Worth, 
40  Barb.  648;  Wheeler  v.  Newbould,  16 
N.  Y.  392 ;  raised  but  not  decided  in  Child 
r.  Hiigg,  41  Cal.  519.  But  see  Bryson  v, 
Rayner,  25  Md.  421 ;  90  Am.  Dec.  69;  Mary- 
land etc.  Ins.  Co.  v.  Dalrymple,  25  Md. 
242 ;  89  Am.  Dec.  779 ;  Schepeler  v.  Eisner, 
3  Daly,  11. 

0  When  therefore  a  liigher  price  is  ob- 
tainable at  a  private  sale  it  will  be  per- 
mitted to  stand.  Ex  parte  Fisher,  20  S.  C. 
129. 

7  Bryson  v.  Rayner,  25  Md.  424 ;  90  Am. 
Dec.  69;  Milliken  v.  Dehon,  27  N.  Y.  368. 


i 


109 


§64 


THE  MUTUAL  BENEFIT  BAILMENT.  [PART  I. 


pledge,  and  the  law  does  not  demand  a  tender  that 
would  be  nugatory.^ 

§  63.    Pledgee  Cannot  Purchase.  —  The    pledgee 
stands  in  a  fiduciary  relation  to  the  pledgor,  and  can, 
therefore,  not  become  a  purchaser,  so  as  to  acquire  any 
personal  advantage  from  his  position  to  the  prejudice 
of  the  interests  of  his  principal  or  cestui  que  trust,  the 
pledgor  ;2  and  a  purchaser  from  him,  with  knowledge 
of  the  facts,  stands  in  no  better  position  than  he  does.^ 
The  purchase  by  the  pledgee  is  not  void,  but  simply 
voidable,  and  may  be  ratified  by  the  pledgor,"  and  the 
assent  of  the  pledgor  of  chattels  to  their  purchase  by 
the  pledgee  will  be  presumed,  where  the  facts  are  no- 
torious and  no  dissent  is  shown.*^ 

§  64.    Irregular  Sale  May  be  Ratified. — And  the 

pledgor  may  ratify  a  sale  irregular  or  illegal,"  either 
expressly  or  by  his  laches.^  The  right  to  a  notice  of 
sale  may  be  waived  in  the  contract,**  in  which  case  there 
is  left  upon  the  pledgee  simplj'  the  obligation  to  sell 
publicly  and  fairly  for  the  best  price.'-*     But  where  a 


1  Kdw.  Bail.,  §  249;  McLes"  c.  Walker, 
10  Johns.  472;  Corteiyuii  v.  Lansing,  2 
Caincs  Cas.  200;  Dykors  v.  Allen,  7  Hill, 
497 ;  42  Am.  Dec.  87 ;  Wilson  v.  Little,  2  N. 
Y.  443;  51  Am.  Dec.  307;  Lewis  v.  Graham, 
4  Abb.  Pr.  106. 

2  Bryan  v.  Baldwin,  52  N,  Y.  233 ;  Pigot 
V.  Cubley,  15  Com.  B.,  X.  .S.,  702 ;  Miatlle- 
sex  Bankt).  Minot,  4  Met.  25;  Ileston- 
ville  B.  R.  Co.  v  Shields,  2  Brewst.  257  ; 
Bank  v.  R.  U.  Co.,  8  Iowa,  277 ;  74  Am, 
Dec.  302 ;  Hope  v.  Lawrence,  1  Hnn.  317 ; 
Chicago  Artesian  Well  Co.  v.  Corey,  60 
111.73;  Stokesi'.  Frazier,  72  111.428;  Bal- 
timore Ins.  Co.  V.  Dalrymplc,  25  Md.  269 ; 
Bryson  v.  Bayner,  25  Md  424;  90  Am. 
Dec.  69 ;  Star  Fire  Ins.  Co.  v.  Palmer,  9 
Jones  &  S.  267. 

sCanfieldv.  Minneapolis  Agricultural 
etc.  Assn.,  14  Fed.  Rep.  801. 

110 


<  Hill  r.  Finigan,  62  Cal.  426;  Killianv. 
Hoffman,  6  111.  (App.)  200. 

s  Carroll  f.  Mnllanphy  Sav.  Bk.,  8  Mo. 
(App.)  249;  Lacombe  v.  Forstall,  123  U. 
.S.  ,')62;8S.  C.  Rep.  247. 

6  Child  I'.  Hngg,  41  Cal.  619;  Hamilton 
V.  .''tate  Bank,  22  Iowa  30G;  Clark  i-.  Bon- 
vain,  20  La.  Ann.  70;  Bryan  t'.  Baldwin, 
1)2  N.  Y.  2:i3;  Karle  v.  Grant,  14  R.  I.  228. 

7  McDowell  V.  Chicago  Steel  Works, 
124  111.  491 ;  7  Am.  St.  Rep.  381 ;  16  N.  E. 
Rep.  854 ;  22  111.  App.  405 ;  Martin  v.  Somer- 
ville  Co.,  27  How.  l*r.  400. 

8  Has  kins  i>.  Patterson,  1  Edm.  120; 
Jeanes'  Appeal,  116  Pa.  St.  673;  2  Am. 
St.  Rep.  624;  11  Atl.  Rep.  862;  McDowell 
f.  Chicago  Steel  Works,  124  111.  491 ;  7  Am. 
St.  Rep.  381 ;  16  N.  E.  Rep.  854. 

9  Maryland  etc.  Ins.  Co.  t>.  Dalrymple, 
25  Md.  242;  89  Am.  Dec.  779;  Baltimore 
etc.  Ins.  Co.  V.  Dalrymple,  26  Md.  269. 


\ 


] 


CH.  VII.]  THE  MUTUAL  BENEFIT  BAILMENT. 


§65 


I 


1 


pledge  of  promissory  notes  contains  an  agreement  be- 
tween pledgor  and  pledgee  that  if  the  debt  for  which 
the  notes  are  pledged  is  not  paid  at  maturity,  the  lat- 
ter can  make  the  money  out  of  them  in  the  best  way  he 
can,  and  that  he  may  sell  the  notes  for  that  purpose, 
it  is  held  that  the  pledgee  cannot  sell  the  notes  with- 
out notice  to  the  debtor  to  redeem,  and  of  the  time  and 
place  of  sale,  and  that  a  notice  after  the  debt  matures, 
that  if  it  is  not  paid  within  a  specified  time,  the  pledgee 
will  make  the  best  disposition  he  can  of  the  notes,  to 
raise  the  money,  either  by  public  or  private  sale,  is  not 
sufficient.*  And  where  one  entitled  to  insist  upon  no- 
tice so  acts  as  to  put  it  out  of  the  power  of  the  other 
party  to  give  him  notice,  he  loses  the  right  to  claim  it.- 

§  65.  Power  to  Sell  not  Mandatary.  — The  power 
to  sell  the  pledge  is  not  considered  as  a  trust  reposed  in 
the  pledgee,  but  rather  as  an  incident  to  the  contract 
of  pledge,  and  a  part  of  the  securit}'.^  Hence,  the 
pledgee  is  not  bound  to  sell,  and  cannot  be  held  liable 
for  the  depreciation  of  the  value  of  the  chattel  between 
the  time  when  the  power  might  have  been  exercised 
and  when  the  sale  was  actually  made.*    As  the  pledgor 


J  Goldsmidt  f.  Worthington  etc.  Trus- 
tees, 25  Minn.  202. 

2  City  Itiiuk  of  Racine  f.  Habcock,  1 
Holmes,  181.  In  this  cast!  bonds  were 
pledged  by  a  bank  as  security  for  the 
performance  of  an  agin-ement  between 
the  bank  and  the  pledgee,  and  the  pledgee 
was  empowered  to  sell  the  bonds,  in 
case  of  breach  of  the  agreement  by  the 
bank,  on  thirty  days'  notice  to  it  of  the 
intended  sale,  and  credit  the  proceeds  on 
a  debt  due  from  the  bank.  The  bank 
afterwards  failed,  closed  its  place  of 
business,  and  thereafter  transacted  no 
business,  and  had  no  ofBce,  nor  acting 
officers,  and  did  not  perform  the  agree- 
ment. About  three  years  afterwards, 
the  pledgee  sold  the  bonds,  in  good  faith, 
at  their  market  value,  without  notice  to 
the  bank.  It  was  held  that  as  the  giving 
ot  the  notice  had  been  rendered  impos- 


sible by  tlic  act  of  the  bank,  neither  the 
pledgee  nor  its  agent  in  the  sale  was  lia- 
ble for  a  conversion  of  the  bonds. 

3  Alexandria  etc.  11.  Co.  v.  Burke,  22 
Graft.  254. 

H  Granite  Bk.  v.  Richardson,  7  Mete.  47; 
Cohjuittr.  .Stnltz,  65  Ga.  305;  Napier  r. 
Central  Hk.,  G8  Ga.  (W7;  Cumnock  v.  Sav. 
Inst.  142  Mass.  :!42 ;  66  ,\m  Hep.  679 ;  7  N.  E. 
Rep.  867;  Robinson  r.  Hurley,  11  Iowa 
410;  79  Am.  Dec.  497;  Richardson  r.  Ins. 
Co.,  27  Graft.  749;  Badlam  ti.  Tucker,! 
Pick.  .S89;  11  Am.  Dec  202;  Smith  v. 
Strout,  63  Me.  205;  Richards  v.  Davis,  5 
Pa,  L.  J.  471 ;  Wood  v,  Morgan,  6  Sneed, 
79;  Bank  of  Rutland  r.  Woodruff,  34  Vt. 
89;  O'Neil  v.  Wigham,  87  Pa.  St.  394; 
Rozet  r.  McClellan,  48  111.  345 ;  95  Am. 
Dec.  551 ;  Wilson  i'.  Culver,  33  Fed.  Rep. 
708;  see  Nourse  r.  Prime,  4  Johns.  Ch. 
490 ;  8  Am.  Dec.  607. 

Ill 


i 

r 

m 

0 
7 
} 


il 


m 
1iJ 


§60 


THE  MUTUAL  BKNEFIT  BAILMENT.  [PAKT  I, 


has  always  open  to  him  to  pay  the  debt  and  re-possess 
the  pledge,'  he  ought  not  to  be  permitted  to  complain 
that  the  pledge  is  retained  for  the  exact  purpose  for 
which  it  was  made.  On  the  other  hand,  a  different 
rule  would  apply  where,  by  the  contract,  the  pledgee 
has  taken  upon  himself  the  duties  of  an  agent  or  factor 
to  sell  the  goods  and  account  for  the  proceeds.  Here 
his  duty  is  to  sell  so  as  to  protect  the  rights  of  all  the 
parties  in  interest,  and  he  is  not  allowed  to  make  an 
unreasonable  delay  in  the  execution  of  his  trust.^ 

§  66.  Pledgee  not  Liable  for  Consequences  of 
Sale,  When. — He  is  not  liable,  if  he  sell  honestly  and 
fairly,  and  after  the  proper  notice,  for  a  loss  which  may 
ensue  to  the  OAvner  from  the  property  realizing  less 
than  its  estimated  valne.^  And  the  pledgee  is  not 
bound  to  defer  selling  until  the  market  is  better.* 

The  pledgee  has  no  right  to  sell  before  default,""'  or 
after  a  wrongful  demand  by  him,  or  a  tender  of 
what  is  due  by  the  pledgor."  If  he  sell  more  of  the 
property  than  is  enough  to  pay  the  debt  secured,  he  is 
liable  in  damages  to  the  pledgor,  whose  acceptance  of 
the  surplus  will  not  defeat  his  right  to  recover  such 
damages.^  He  may  sell  negotiable  paper  not  yet  due, 
only  where  it  has  a  long  time  to  run;**  in  other  cases, 


1  Granite  Bank  i-.  Uicharclson, mi/)ra. 

2 See  Granite  Hk.  i:  Richardson,?  Mote. 
407;  Norton  v.  Squire,  16  Jolins.  225; 
Franklin  Sav.  Inst.  v.  rreetorius,  6  Mo. 
(App.)  470. 

3  Ainsworth  v.  Bowen,  9  Wis.  348; 
White  V.  Rahway,  16  Fed.  Kop.  8o»; 
Jeanes'  Appeal,  116  I'a.  St.  ,'573;  2  Am.  St. 
Kep.  624 ;  11  All.  Rep.  802. 

4  King r.  Texas  Banking  Co.,  58  Tex.  669. 

112 


s  Johnson  1'.  .Stear,  16  Com.  B.,  N.  S., 
730;  Ogden  v.  Lathrop,  1  Sweeny,  643. 

6  Pigot  r.  Ciibloy,  15  Com.  B.,  N.  S.. 
702;  Hope  i'.  La\VTeupe,  1  linn,  317;  Blood 
r.  Krie  Sav.  Co.,  HO  Atl.  Rep.  362  (Pa.). 

1  Lewis  r.  Graham,  4  Abb.  Vr,  110; 
Fitzgerald  v.  Blocher,  32  Ark.  742 ;  29  Am. 
Rep.  3. 

8  Richards  v.  Davis,  6  Pa.  L.  J.  471. 


on.  VII.]  THE  MUTUAL  BENEFIT  BAILMENT. 


§66 


it  is  his  duty  to  wait  and  collect  it;*  though  a  court, 
under  special  circumstances,  may  order  a  sale." 

The  pledgee,  on  the  sale,  does  not  warrant  the  title; 


;<:'' 


^1 


1  Whittaker  f.  Charleston  Gas  Co.,  16 
W.  Va.  717;  Wheeler  r.  Newboiilil.  16  N. 
Y.  3V)2;  Fniker  v.  Heeve,  30  Wis.  H5.  In 
■loliet  Iron  Co.  r.  Scioto  Fire  Hrick  Co., 
8'2  111.  54H,  25  Am.  Uep.  341,  the  Court 
sny:  "The  pledge  of  comniereial  paper 
as  collateral  security  for  the  payment  of 
a  debt  does  not,  in  the  absence  of  a  spe- 
cial power  for  that  purpose,  authorize 
the  party  to  whom  such  paper  is  so 
pledged  to  sell  the  securities  so  pledged, 
upon  default  of  paynu'nt,  either  at  pub- 
lie  or  private  sale.  lie  is  bound  to  hold 
and  collect  the  same  as  it  becomes  due, 
and  apply  the  net  proceeds  to  the  pay- 
iwnt  of  the  debt  so  secured.  A  person 
holding  property  or  securities  in  pledge 
occupies  the  relation  of  trustee  for  the 
owner,  and  as  such,  in  the  absence  of 
special  power  to  do  otherwise,  is  bound 
to  proceed  as  a  jinident  owner  would 
with  his  own.  From  the  very  nature  of 
the  case,  property  <'an  only  be  a]  plied  as 
security  through  the  process  of  sale. 
Not  so  with  bonds,  mortgages,  or  prom- 
issory notes;  Wheeler  v.  Newbould,  10 
X.  y.  392.  It  is  insisted,  however,  that 
the  bonds  mentioned  in  the  plea  are  not 
shown  to  have  lieen  commercial  paper. 
It  is  not  perceived  that  this  could  in  any 
way  alter  the  case.  All  the  reasoning  in 
support  of  the  doctrine  laid  down  as  to 
commercial  paper  applies  with  the  same, 
if  not  with  more,  forci'  to  bonds  payable 
upon  condition.  l*ut  up  to  sale,  no  bid- 
der can  by  mere  inspection  of  the  paper 
form  any  just  Judgment  as  to  the  value 
of  such  paper." 

2  Clegliorn  v.  Minnesota  Trust  Co.,  5!) 
N.  W.  K(!p.  320,  the  Court  saying:  "The 
nde  of  law  undoubtedly  is  that,  without 
express  agreement  to  the  contrary,  com- 
mercial paper  pledged  as  collateral  can- 
not be  sold  by  the  pledgee  at  either  pub- 
lic or  private  sale.  The  reason  for  this 
is  that  such  paper  has  no  market  value, 
and  consequently,  if  exposed  for  sale, 
would  be  liable  to  be  sacrificed.  But  the 
question  of  the  right  of  n  pledgee  to  come 
into  court,  and  have  a  decree  for  u  judi- 
cial sale  of  the  pledge,  is  an  entirely  dif- 
ferent question.    This  was  always  a  well- 


9 


recognized  head  of  equitable  jurisdiction, 
even  where  the  pledgee   or   mortgagee 
had  a  right  to  sell  the  property.    The  sale 
being  under  the  dir.ection  and  control  of 
the  court,  it  has  the  power,  as  it  is  its 
duty,  to  see  to  it  that  the  property  shall 
not  be  sacriftced ;  and  hence  such  a  sale 
is  not  liable  to  the  evils  or  abuses  to 
which  a  sale  by  a  party  himself  is  sub- 
ject.   Just  when  and  under  what  circum- 
stances a  court  would  or  should  order  a. 
sale  of  commercial  paper  or  other  collat- 
eral of  similar  character  it  is  not  neces- 
sary to  consider.    The  right  to  do  so,  at 
least  under  special  circumstances,  is  nn 
doubted.    I'om.  Kq.§§104,  1231;  Daniels, 
Neg.  Inst.  §  H3;i;  Jones,  Pledges,  §  G5.'5; 
Donohoe  v.  fJauihle,  38  Cal.  340.    In  the 
present  case  the  collateral  note  had  some 
four  years  to  I'un  before  it  matured.   The 
pledgor  had  become  insolvent,  and  hatl 
made  a  general  assignment  for  the  ben- 
efit of  all  his  creditors.    The  plaintiff  had 
proved  his  claim  in  the  insolvency  pro- 
ceedings, and  hail  claimed,  as  he  might, 
the  right  to  participate  in  the  benellts  of 
the  assignment  in  case  the  pledged  prop- 
erty ]iroved    insuflicient   to   satisfy    his 
claim  in  full.    Hence,  unless  the  collat- 
eral should  be  sold,  the  final  settlement 
of  the  estate  of  the  insolvent  would  be 
postponed  for  several  years.    These  facts 
made   a  proper   case,  even   under   the 
stricte>t  nile,  for  a  judicial  sale  of  the 
collateral  note.     Counsel  for  defendant 
argues  that  the  pledge  was  made  under 
a   contract,   implied   by    law,    that   the 
paper  should  not  be  sold,  but  that  the 
plaintiff  should  wait  until  its  maturity, 
and  then  collect  it  in  the  ordinary  way, 
and  that  a  court  has  no  power  to  change 
the   contract  of  the  parties.     There  is 
nothing   in  this   point.      The    question 
is  one  of  remedy,  rather  than  of   con- 
tract right;   and  if   the  law  as   to   the 
manner   of  realizing  on   the   collateral 
is  to  be  deemed  to  have  entered  into, 
and    become   a   part  of,   the  contract, 
this  would  be  as  applicable  to  the  rule 
which  authorizes  a  judicial  sale  as  it  is  to 
the  rule  which  forbids  the  pledgee  him- 
self to  sell." 

113 


7 


§68 


THE  MUTUAL  BKxVKFIT  HAILMKNT.  [PAIIT  I. 


be  soils  simply  what  intorost  ho  may  have  in  the  chat- 
tel;* so,  also,  where  he  plotljjes  his  interest.^ 

§  67.     The  Pledgor'H  Right  to  the  Surplus.— If 

the  pledgee  realizes  upon  the  secnrity  deposited  with 
him,  after  his  debt  beeomes  due,  by  proceeding  to  sell 
on  notice,  or  collecting  where  a  chose  in  action  is 
pledged,  the  fund  which  comes  into  his  han<ls  must, 
after  the  payment  of  his  debt,  be  held  in  trust  for  the 
pledgor,  and  must  be  ])aid  over  to  him.''  A  pledgee 
who,  in  replevin  for  the  i)ledge,  recovers  judgment  for 
its  value  in  money,  which  realizes  him  more  than  the. 
amount  of  his  denuiud,  holds  the  balance  in  trust  for 
the  pledgor.* 

§  68.  The  Pledgee's  Right  of  Action.— Like  other 
bailees,  the  pled^^ee's  special  j)rop('rty  gives  him  a  right 
to  sue,  either  for  the  restitution  of  the  thing,"'  or  for 
damages,  as  he  elects,  the  ownci,"  oi-  a  stranger'^  who 
nmy  take  it  from  his  possession.  Against  the  owner 
he  is  entitled  to  recover  only  his  special  interest  in  the 
chattel,  but  against  a  stranger  he  is  entitled  to  the 
full  value  of  the  pledge.*^  The  pledgee  nmy  rei'over  on 
an  obligation  of  a  third  party  pledged  to  him  by  his 
debtor,  to  its  full  amount,  and  if  such  amount  be 
greater  than  that  due  from  the  pledgor,  he  recovers  the 
excess  for  the  use  of  the  latter.  AVhere,  however,  the 
maker  of  the  instrument  has  a  good  defense  against 


1  Morlcy  V.  Attenhoroii^'b,  3  Kk.  5nfi; 
Baker  i'.  Ariicit,  2  Utin.  (W2 ;  i;7  N.  V.  44S, 

2  Northampton  Bk.  i:  >[ass.  Co.,  123 
Mass.  .S3n. 

SHnntr.  Ncvers,  15  I'iok.  500;  2G  Am. 
Doc.  filC;  Nottcholim  v.  Maas,  S  Robt.  249. 

4  Miles  V.  WaltlKT,  H  Mo.  r  App.)  96. 

«r()l(Mn:in  r.  .'Jhcltoii,  2  McCorJ  Ph. 
120;  If,  Am.  Dec.  G.TO;  Nolos  v.  Marablo, 
60  Ala.  :m. 

fi  TrcadwcU  r.  Davis,  Hi  Cal.  f.Ol ;  94 
Ara.  Dec.  770;  LyU-  r.  Uarkir,  S  liinn. 
457;  Ayre  v.  ."^onth  Australian  Ranking 
Co.,  L.  R.  a  P.  C.  648;  Way  v.  Davidson, 

114 


12  Gray,  405;  74  Am.  Doc.  004  ;  nondri.x  v. 
Ilarman,  19  S.  C.  483. 

7\Voo(lniff  r.  nalscy,  H  I'ick.  3.33;  19 
Am.  Doc.  329;  Brownoll  v.  Hawkins.  4 
l?arh.  491;  Nolos  r.  Maral)K',  60  Ala.  HtUJ; 
I>ylo  r.  Rarkor,  5  Minn.  457. 

« TrcadwoU  r.  Davis,  34  Pal.  001 ;  94 
.\m.  Dec.  770;  .\danis  r.  O'Connor,  100 
Mass.  615;  1  Am.  Hop.  1.37;  Renjamin  r. 
.Stremple,  13  111.  400:  llarker  v.  Dement, 
9  Gill,  7;  02  Am.  Doc.  070:  Lvlo  r.  Bar- 
ker, 5  liinn  457;  Swire  r.  Loach,  IR  Com. 
15  ,  N.S.,479;  Pomcroy  i-.  Smith,  17  Tick. 
85;  Brownell  v.  Hawkins,  4  Barb.  491. 


V 


en.  VII.]  TIU:  MUTUAL  BENEFIT  BAILMENT. 


§69 


tho  pledgor,  the  hotter  rule  appears  to  be  tliat  even  a 
lioiKi  fide  holder  without  uotice  can  recover  the  amount 
of  his  principal  debt  only.' 

§  09.     The    PlcHlffor'8    Kight    of   Action.  —  The 

pledjior  has  no  occasion,  as  a  }>eneral  rule,  to  come  into 
a  court  of  equity  for  the  redemption  of  j^oods  deposited 
in  pledge.  On  the  payment  of  his  debt,  he  has  a  legal 
remedy  for  the  recovery  of  the  pledge.-  The  remedy 
is  sometimes  in  the  nature  of  trover  for  a  refusal  to  re- 
deliver on  demand;  sometimes  in  the  nature  of  replevin 
for  detaining  the  goods;  depending  in  each  case  upon 
the  circumstances  attending  the  transaction.  Whore, 
however,  there  are  accounts  to  be  settled,  or  discovery 
is  desired,  he  may  properly  file  a  bill  in  equity  for  re- 
demi)tion.''  If  the  goods  pledged  have  been  wrong- 
fully sold  by  the  i)lodgee,  a  recovery  may  be  had 
against  him  in  a  suit  in  the  nature  of  an  action  on  the 
case;  or  in  assumpsit  to  recover  tho  value  of  the  prop- 
erty.^ IJut  though  a  conversion  of  the  pledge,  by  the 
I>ledgee,  renders  him  liable  for  its  value,  it  does  not 
discharge  the  original  debt.  If  the  debt  for  which  the 
pledge  is  (lei)osited  has  not  been  paid,  and  an  action  is 
brought  for  the  appropriation  or  conversion  of  the 
pledge,  the  pledgee  may  recoup  the.  amount  of  his 
debt.'"'  So  the  debtoi',  when  sued  for  the  debt,  may  set 
off  the  value  of  the  property  converted."  But  it  seems 
that  in  the  case  of  a  perishable  article,  or  whore  it 


1  Union  Uk.  r.  Kobcrts,  45  Wis.  303; 
First  Nat.  Hk.  r.  Mann,  12  S.  W.  Hop. 
1015;  see  Steere  r.  Benson,  2  111.  (App.) 
660. 

2  Edw.  Bail.  §  250. 

■inartlett  V.  Johnson,  9  Allen  5,^(l; 
Conyngham's  Appeal,  57  Pa.  St.  474 ;  Has- 
brouck  r.  Vamlcrvoort,  4  Sand.  74;  Mer- 
rill V.  ITouKhton,  61  N.  U.  CI ;  ^^  hite 
Mountain  11.  U.  Co.  v.  Bay  State  Iron  Co., 
60  N.  II.  ,57;  Chapman  v.  Turner,  1  Call, 
280;  1  Am.  Dec,  fil4;  Brown  v.  Runals,  14 


Wis.  G93;  Flowers  r.  Spronle,  2  A.  K. 
.Alarsh.  54. 

4Stearns  r.  JIar.sh,  4  Denio,  227;  47 
Am.  Dec  248. 

»  Edw.  Bail.  §  213;  Wilson  v.  Little,  2 
N.  Y.  44n;  51  Am.  Dec.  307,  See  Story 
Bail.  §  308,  note;  Lewis  v.  Mott,  36  N.  Y. 
305;  Bulkeley  v.  Wel<'h,  81  Conn.  3,39; 
Donald  r.  Suckling,  L.  R.  1  Q.  B.  585; 
.Johnson  v.  Stear,  15  Com.  B.,  X.  S.,  730. 

8  Stearns  v.  Marsh,  siipra ;  Levy  v.  Loeb, 
47  N.  Y.  (S.  C.)  61 ;  75  N.  Y.  609. 

115 


3 


I- 


§70 


THE  MUTUAL  BENEFIT  BAILMENT  [PAET  I 


would  be  greatly  to  the  benefit  of  the  pledgor  to  have 
a  sale  at  once,  a  court  of  equity  would  order  it  at  the 
instance  of  the  pledgor.  ^ 

§70.     The    Pledge,    How   Extinguished.  —  The 

pledge  becomes  extinguished,  and  the  bailment  con 
tract  at  an  end,  in  the  following  modes,  viz.,  by  1.    Pay- 
ment;  2.  Kelease  or  waiver;   3.  Loss  or  destruction; 
4.  Surrender;  5.  Limitation;  G.  Merger. 

1.  By  payment  of  the  debt  or  discharge  of  the  en- 
gagemcat,  the  contract  is  ended.-  If  the  principal  ob- 
ligation be  conditional,  that  of  the  pledge  is  confirmed 
or  extinguished  with  it.  If  the  obligation  be  null,  so 
also  is  the  pledge;  for  the  pledge  is  a  security  collateral 
to  the  original  undertaking;  so  that  a  discharge  of  the 
latter  is  a  redemption  of  the  pledge,  by  which  the  ab- 
solute property  therein  vests  in  the  pledgor.  What- 
ever, in  short,  satisfies  or  renders  invalid  the  original 
debt,  will  equally  discharge  such  a  collateral  under- 
taking as  a  pledge  given  for  its  payment.  But  it 
seems  that  a  court  will  not  aid  the  pledgor  to  recover 
back  a  security  which  he  has  voluntarily  parted  with 
for  value  received,  though  the  transaction  may  not 
have  been  a  legal  one,  or  for  a  legal  object.'' 

2.  The  release  of  the  security  by  the  pledgee  will, 
of  course  extinguish  it,*  and  so,  where  he  waives  the 
securit}-,  as  for  example  there  he  attaches  the  pledge 
as  the  pledgor's  property,  he  abandons  the  lien  of  his 
pledge.^  But  a  waiver  of  a  part  of  the  security  is  not 
a  waiver  of  all." 


1  Storv  Bail.  §  nan;  Story's  Kq.  §§  1031- 
1083;  Kcmpr.  Wostbrnok!  1  Vos.  Sr.  278, 

2  Str)i7  Bail.,  §  S.W;  Mitchell  v.  Roberts, 
17  Fed.  Ucp.  776 ;  Lotiirhbroxigh  r.  Mc- 
Kevin,  74  Cal.  250;  5  Am.  St.  Hop.  4.3.5; 
14  Piic.  Rep.  69;  l.-i  Pac.  Rep.  773; 
Merrifleld  v.  Baker,  0  Allon,  29;  Ward  r. 

110 


Ward,  37  Mich.  253. 

■lEdw.  P  lil.  §  247;  King  t'.  Green,  6 
Allen,  1.39. 

4  Homes  V.  Crane,  2  Pick.  607. 

6  Citizens  Bank  v.  Hows,  68  la.  4r,i);  27 
K.  W.  Uep.  4.W. 

6  Macomber  i:  Parker,  14  Pick.  607. 


I 


OH.  VII.]  THE  MUTUAL  BENEFIT  BAILMENT. 


§70 


3.  Where  the  pledge  is  lost,  or  destroyed,*  it  is,  of 
course,  at  an  end,  like  any  othrr  bailment;  if  the  loss 
is  not  the  bailee's  fault,  the  debt  is  not  affected;  but 
the  pledgee  cannot  recover  the  debt  for  which  it  was 
security,  without  showing  that  the  loss  was  not  attrib- 
utable to  his  fault.-  While  the  pledgee  has  no  right 
to  use  the  pledge  except  with  the  express  or  implied 
assent  of  the  pledgor,^  or  where  its  use  is  beneficial, 
or  necessary  to  the  preservation  of  the  thing  pledged, 
or  its  keeping  is  an  expense  to  the  pledgee;*  yet  it  seems 
that  by  using  the  pledge  to  its  damage  the  pledgee, 
though  liable  for  the  loss,  does  not  forfeit  the  security, 
or  become  liable  as  for  a  conversion  of  if 

4.  If  the  pledgee  voluntarily  surrender  the  posses- 
sion of  the  pledge  by  delivering  it  back  to  the  pledgor, 
his  lien  will  be  thereby  terminated.**  This  will  not  be 
the  effect,  however,  where  it  is  delivered  back  to  the 
owner  for  a  temporary  purpose  only,  on  an  agreement 
that  it  shall  be  restored;  for  in  this  case,  the  pledgee 
may  recover  it  against  the  owner,  if  he  refuse  to  restore 
it  after  the  temporary  purpose  is  fulfilled.'  So,  if  it 
be  delivered  back  to  the  owner  in  a  new  character,  as 
for  example,  as  a  special  bailee  or  agent,  the  pledgee 
will  be  still  entitled  to  the  pledge,  not  only  as  against 


1  Story  Bail.,  f  363. 

a  Crocker  v.  Monrose,  18  La.  653;  86 
Am.  Dec.  660. 

s  Lawrence  v.  Maxwell,  63  N.  Y.  22; 
Thompson  v.  Patrick,  4  Watts, 414. 

4  Laws.  Bights,  Bern.  &  Vr.,  §  1761. 

»  Thompson  v.  Patrick,  4  W-itts,  414 ; 
Heath  i-.  Silverthorn  Co.,  39  Wis.  147. 

•  Kimball  v.  Hildreth,  8  Allen,  167; 
Beeman  v.  Lawton,  37  Me.  643;  Bnssell  v. 
Fillmore,  16  \t.  136;  Eastman  v.  Avery, 
33  Me.  248;  Bonsey  v.  Amee,  8  Pick.  386; 
Homes  v.  Crane,  2  Pick.  607 ;  Look  v.  Com- 
•tock,  16  Wend.  244 ;  Day  v.  8wift,  48  Me. 
368 ;  Shaw  v.  Wilshire,  66  Me.  486 ;  Mills  t'. 
Stewart,  6  Hnmph,  308;  Thompson  v. 
OolliTer,  182  Mass.  103 ;  Babcock  v.  Law- 


son,  L.  B.  6  Q.  B.  D.  284 ;  4  /<f.  S94 ;  Walker 
t'.  Staples,  6  Allen,  34;  Collins  v.  Buck,  63 
Me.  469;  Fl;«tcher  v.  Howard,  2  Aik.  116; 
16  Am.  Dec.  686 ;  Trcadwell  v.  Davis,  84 
Cal.  601 ;  94  Am.  Dec.  77" :  Black  v.  Bo- 
gert,  66  N.  Y.  601;  Barrett  v.  Cole,  4 
Jones,  40 ;  Citizens'  Nat.  Bank  v.  Hooper, 
47  Md.  86;  Whitakcr  r.  Snmner,  20  Pick. 
399. 

1  Macomber  t*.  Parker,  11  Pick.  609; 
Beeves  r.  Capper,  6  Bing.  N.  0.  136;  In- 
galls  V.  '"An  Bokkelen,  7  Cow.  670;  Jones 
V.  Baldw. ..,  12  Pick.  816 ;  Hays  v.  Biddle, 
1  Sand.  248:  Way  v.  Davidson,  13  Gray, 
466 ;  74  Am.  Dec.  604 ;  Wolcott  v.  Keith,  7 
Fost.  196;  Citizens'  Nat.  Bk.  v.  Hooper, 
47  Md.  88;  Cooper  v.  Bay,  47  111.  63. 

117 


r 

■I 

Q 
2 
} 

7 

•I 


i 


§70 


THE  MUTUAL  BENEFIT  BAILMENT.  [PAKT  I. 


the  owner,  but  also  as  against  third  persons.^  In  an 
early  case,  a  master  of  a  ship  pledged  his  chronometer 
to  the  owners;  they  permitted  him  to  keep  it  on  the 
ship  a.nd  use  it  for  the  purpose  of  navigation.  It  was 
held  that  they  had  not  parted  with  the  possession.-  But 
a  bona  fide  purchaser  of  pledged  property,  redelivered 
by  the  pledgee  to  the  pledgor  for  temporary  use,  will  be 
protected  against  the  claims  of  the  pledgee  on  the  prop- 
erty.^ Of  course,  it  Avill  not  be  affected  by  the 
pledgee's  losing  possession  of  it,  either  by  force  or 
fraud.* 

5.  A  simple  contract  debt  is  not  excepted  from  the 
statute  of  limitations  because  accompanied  by  a  pledge 
as  collateral  security.  If,  therefore,  the  debt  be  barred 
by  the  statute,  it  seems  the  pledgor  nuiy  recover  the 
pledge;  unless,  indeed,  it  should  be  held  that  the 
pledgee  acquires,  with  the  special  property  transferred 
to  him,  a  power  coupled  with  an  interest  to  :^ell  the 
pledge  and  apply  the  proceeds  to  the  payment  of  the 
debt,  for  such  an  authority  cannot  be  revoked  at  the 
pleasure  of  the  person  granting  it.'^ 

6.  It  has  been  said  that  the  pledge  will  be  extin- 
guished by  the  taking  by  the  creditor  of  a  higher  se- 
curity for  the  same  debt;"  and  such  is  the  rule  as  to 
contracts  generally,  i,  c,  that  when  an  account  is  set- 
tled by  a  note,  a  note  changed  to  a  bond,  or  a  judgment 
taken  upon  either,  the  debt  as  to  its  original  or  inferior 

or  swallowed   up   in   the 
But  Mr.   Edwards  says:^    "It  has 


condition 
higher  securit}-.^ 


is   extinguished 


1  Clark  V.  Iselin.  21  Wall.  300 ;  Hntton 
V.  Arnett,  51  111.  11)8 ;  Cooper  r.  Ray.  <"I11- 
63;  White  v.  I'latt,  5  Uonio,  2tiO;  In  re 
Rawson,  2  Low.  519;  Thayor  i:  Dwight, 
104  Mass  2S7. 

i  Reeves  v.  Capper,  5  Ring.  N.  C.  13G. 

3  Britten  v.  Harvey,  16  Soatli.  Uep.  747 
(ta.) 

i  Baton  V.  Hodges,  18  Fed.  Uep.  077; 

118 


Roberts  v.  Wyatt,  2  Tannt.  268 ;  Way  v. 
Davidson,  12  Gray,  465;  74  Am.  Dec.  604; 
Soule  r.  White,  14  Me.  436;  Wolcott  v. 
Keith,  2  Fost.  196;  Bruley  v.  Rose,  67 
Iowa,  651. 

8  Edw.  Bail.  §  269;  Story  Bail,  }  363. 

8  Story  Bail.  §  360. 

J  Laws.  Contr.  §  428. 

a  Bail.  S  272. 


I 


CII.  VII.]  THE  MUTUAL  BENEFIT  BAILMENT. 


§71 


never  been  applied  to  the  extinguishment  of  distinct 
collateral  securities,  whether  superior  or  inferior  in  de- 
gree. These  are  to  be  cancelled  by  satisfaction  of  the 
debt,  or  voluntary  surrender  alone.  A  pledge  being 
a  security  of  this  nature,  is  not  affected  by  the  recovery 
of  a  judgment,^  or  the  taking  of  a  bond,  or  other  se- 
curity for  the  original  debt;^  it  is  given  to  secure  the 
payment  of  the  demand,  and  the  law  will  hold  it  to  the 
accomplishment  of  that  purpose." 

§  71.     Eflfect  of  Death  of  Either  Party.  —  The 

right  of  redemption  descends  to  the  personal  represen- 
tatives of  the  pledgor;  if  the  pledgee  sell  the  pledge 
without  notice,  before  application  to  redeem,  he  is  an- 
swerable for  the  value  of  the  pledge  at  the  time  of  the 
application.  There  is  no  reason  why  the  death  of 
either  party  to  the  contract  should  affect  the  right  of 
redemption,  or  prevent  it  from  descending  entire  and 
unimpaired  to  the  representatives  of  the  pledgor.^ 

And  the  pledgor  may  redeem  against  the  repre- 
sentatives of  the  pledgee.*  A  pledgee  is  not  obliged 
to  present  his  claim  to  the  administrator  of  the 
pledgor,  unless  he  seeks  recourse  against  other  prop- 
erty of  the  estate  than  that  pledged.''' 


1  Ante  §  69. 

2  Sl-c  Collins  f.  Dawley,  4  Cal.  138;  34 
Am.  Rep.  72;  Bank  of  America  v.  Mc- 
Neil, 10  linsh,  54. 


3  Cortelyon  v.  Lansing,  2  Caines  Gas. 
200;  Story  Uuil.  §  348. 

4  Story  liail.  §  348.    See  Hunt  r.  Nevers, 
15  Pick.  500;  26  Am.  Dec.  616. 

«  Kibbe's  Estate,  57  Cal.  407. 

119 


r 

m 

D 


DIVISION  II. 


THE  EXCEPTIONAL  BAILMENT. 


!9 


121 


f 

m 


2 


M 


■ 


PART  I. 


THE  INNKEEPER. 


123 


0! 

} 

3 


'((■' 


T 


ii 


i 


^ 


CHAPTER  VIII. 


INNKEEPERS. 


Section  72.  Who  are  Innkeepers. 

73.  Duty  to  Receive  the  Public. 

74.  Duty  only  Toward  Guests. 

75.  Duty  as  to  Guest's  Person. 

76.  An  Insurer  of  Guest's  Property. 

77.  At  what  Time  Liability  Begins. 

78.  At  what  Time  Liability  Ends. 

79.  For  what  Property  Responsible. 

80.  Contributory  Nefrligence  of  Guest. 

81.  Limitation  of  Inniiceper's  Liability. 

82.  The  Innkeeper's  Lien. 

§  72.  Who  are  Innkeepers. — An  innkeeper  is  the 
keeper  of  an  inn,  tavern,  hotel  or  other  public  place 
for  the  entertainment  of  strangers  or  visitors.^  Though 
formerly-  an  inn  was  defined  to  be  "a  house  where  a 
traveler  is  furnished  with  everything  which  he  has 
occasion  for  while  on  his  way;"  yet  in  modern  times 
the  requirements  of  the  public,  the  modes  of  traveling, 
and  the  necessities  of  individuals  have  changed  some- 
what,  and  the  methods  of  keeping  houses  of  entertain- 
ment have  changed  with  them.  One  is,  therefore,  none 
the  lefis  an  innkeeper  because  he  does  not  provide  wine, 
spirits,  or  malt  liquors  for  his  guests;^  or  does  not  pro- 
vide accommodation  for  his  beast  as  well  as  for  the 
man;*  or  that  he  provides  lodging  only,  and  not  meals;' 


1  Taylor  r.  Monnot,  4  Ducr,  IIG;  Howth 
V.  Franklin,  20  Tex.  798;  73  Am.  Dec.  218; 
re  Jones,  3  Ch.  Div.  457;  Smith  v.  Scott,  2 
Moore  &  S.  35 ;  IJonner  t'.  Welborn,  7  Ga. 
296;  Com.  v.  Weatherbee,  101  Mass.  214; 
State  V.  Chamblyss,  Cheves,  222 ;  34  Am. 
Dec.  693 ;  Ilaff  erty  v.  New  Brunswick  Fire 
Insurance  Co.,  18  N.  J.  L.  480;  88  Am. 
Dec.  625;  Gray  v.    Com.  9  Dana  308;  35 


Am.  Dec.  137;  Overseers  v.  Warner,  3 
Hill,  150. 

2  Thompson  v.  Lacy,  3  B.  &  Aid.  26G. 

3  Pinkertonr. Woodward,  33  Gal.  696;  91 
Am.  Dec.  667. 

4  Id. 

«  Id.;  Krohn  v.  Sweeney,  2  Daly,  200; 
Bernstein  r.  Sweeny,  33  N.  Y.  Snp.  Ct. 
271 ;  Taylor  v.  Monnot,  4  Dner,  16. 

125 


r 

M 


§72 


INNKEEPERS. 


[part  I. 


or  that  the  patronage  of  the  house  comes  there  rarely, 
or  only  on  certain  periodical  occasions.*  The  question 
alwaj's  is,  as  it  is  in  the  law  of  common  carriers,-  does 
he  hold  himself  out  to  the  public  as  ready  to  entertain 
all  who  apply?    If  he  does  so,  he  is  an  innkeeper.^ 

Boarding  and  lodging-house  keepers  are  not  inn- 
keepers, because  they  are  understood  to  take  those  only 
whom  they  desire,  and  generally  for  a  fixed  term;^  nor 
is  the  private  housekeeper  who  takes  an  occasional 
boarder  for  profit;"  nor  an  eating  house  or  restaurant 
keeper  who  provides  food  and  drink  only  and  not  lodg- 
ing.*^ But  the  word  "restaurant"  has  no  fixed  legal 
meaning,  though  it  currently  means  an  eating  house; 
if  lodgings  are  provided  as  well,  or  if  its  real  character 
is  an  inn,  the  name  by  which  it  goes  is  of  little  account/ 
One  who  is  an  innkeeper  as  to  the  general  public,  may 
by  a  special  arrangement  with  individuals  who  come  to 
remain  for  some  length  of  time,  become  as  to  them  a 
lodging  or  boarding  house  keeper.^ 

Boarding  and  lodgiug-houss  keepers  are  allowed  to 
choose  their  own  customers  like  any  other  private 
tradesman  or  person,"  and  their  liability  for  the  goods 


1  Kisten  v.  Hildebrand,  9  B.  Mon.  72 ;  48 
Am.  Dec.  41G ;  Clary  v.  Willey,  49  Vt.  56. 

2  As  to  which  sec  §  83. 

3  Ilowth  V.  Franklin,  20  Tex.  798;  7.'i 
Am.  Dec.  218;  Pinkerton  v.  Woodward, 
33  Cal.  557 ;  91  Am.  Dec.  657 ;  Dickcrson  v. 
Rogers,  4  Humph.  179 ;  40  Am.  Dec.  642. 

4  Williard  v.  Reinhardt,  2  K.  D.  Smith, 
48;  Cromwell  v.  Stephens,  2  Daly,  15; 
W'intermutc  v.  Clark,  B  Sand.  247 ;  People 
t>.  Jones,  54  Barb.  311 ;  Walling  v.  Potter, 
35  Conn.  183;  Kisten  r.  Uildebrand,  9  B. 
Mon.  72;  48  Am.  Dec.  416;  Mateer  v. 
Brown,  1  Cal.  221;  52  Am.  Dec.  303; 
I'oUook  r.  Landis,  i!6  Iowa,  651 ;  Smith  v. 
Keyes,  2  Thomp.  &  C.  650. 

»  Cady  f.  McDowell,  1  Lans.  484;  State 
t'.  Matthews,  2  Dev.  &  B.  424;  Lyon  i'. 
Smith,  1  Morris,  184 ;  Ilowth  v.  Franklin, 

126 


20  Tex.  798;  73  Am.  Dec.  218;  Kisten  i». 
Uildebrand,  9  B.  Mon.  72;  48  Am.  Dec. 
416. 

B  Carpenter  v.  Taylor,  1  Hilt.  193;  Wall' 
ing!-.  Potter,  35  Conn.  183;  Doer.  Lam- 
ing, 4  Camp.  77 ;  R.  r.  Uynier,  L.  R.  2  Q.  B. 
Div.  136;  Kisten  f.  Uildebrand,  9  B.  Mon. 
73;  48  Am.  Dec.  416. 

7  Lewis  V.  Hitrhcock,  10  Fed.  Rep.  4; 
Kopper  V.  Willis,  9  Daly,  460. 

8  Hall  r.  Pike,  100  Mass.  495 ;  Pollock  f. 
Landis,  .36  Iowa,  651;  Wiser  u.  Chesley, 
53  .Mo.  547;  Cross  v.  Wilkins,  43  ,\.  H.  3,32; 
Johnson  c.  Reynolds,  3  Kan.  257 ;  Vance 
f.  Throckmorton,  5  Bush,  41 ;  96  Am 
Dec.  327 ;  Lawrence  r.  Howard,  1  Utah, 
142;  Taylor  r.  Downey,  62  K.  W.  Rep.  716 
(Mioh.). 

8  Schoiil.  Bail.  §  290;  R.  f.  Rymer,  2  Q. 
B.  Div.  136. 


: 


CH.  VIII.] 


INNKEKPEllS. 


§  7:j 


of  their  boarders  or  lodgers  is  that  of  an  ordinary- 
bailee  for  hire  only.* 


§  73,  Duty  to  Receive  the  Public. — The  comn  >ii 
law  duties  of  iuukooitors  are  exactly  similar  to  those 
of  common  carriers.^  The  acts  to  be  performed  by 
these  two  classes  of  persons  are  different,  but  the  prin- 
ciple of  the  imposed  duty  is  the  same.  It  is  the  duty 
of  an  innkeeper  to  receive  and  entertain  a  guest  if  he 
has  room  in  his  inn  or  hotel,  just  as  it  is  a  carrie/s  duty 
to  convey  a  parcel  if  he  lias  room  in  his  vehicle.''  And 
it  is  no  excuse  that  the  guest  applies  on  Sunday, 
or  at  night  after  the  innkeei)er  and  family  have  gone 
to  bed,  or  that  the  guest  will  not  tell  his  name  and 
abode;*  or  that  the  guest  is  a  minor,  or  married  woman 
traveling  alone,^  or  that  other  persons  of  his  calling 
had  on  former  occasions  been  guilty  of  misbehavior  iu 
the  inn.*"' 

But  reasons  analagous  to  those  which  a  common  car- 
rier may  set  up  will  justify  the  refusal  of  the  innkeeper, 
— as  for  example,  that  the  person  desiring  accommoda- 
tion is  a  drunken  or  disorderly  person;  or  one  afflicted 


1  Dansey  v.  Richardson,  3  KI.  &  M.  144 , 
Wiser  t>.  Clieslpy,  53  Mo.  647;  Johnson  r. 
Reynolds,  3  Kan.  257;  Smith  r.  Ueiul,  f)2 
How.  Pr.  14;  6  Daly,  33;  Jeffords  r. 
Ommp,  B  Week.  N.  C.  10;  Vunco  r. 
Throckmorton,  5  Bnsh,  51 ;  9G  Am.  Dec. 
327 ;  Manning  v.  Wells,  9  Hnniph.  746 ;  51 
Am.  Dec.  688.  In  Smith  i-.  Read,  6  Daly, 
33,  such  a  person  was  held  liable  for  loss 
of  a  guest's  goods  by  theft  committed  by 
a  stranger  whom  the  housekeeper  em- 
ployed by  the  proprietor  negligently  per- 
mitted to  visit  the  guest's  room. 

2  As  to  which  see  §  89,  post. 
siJroadwood   v.   Granara,  10  Ex.  423; 

Story  Bail.  §  476;    Schoul.  Bail.    §  287; 
Hawthorn  t-.  Hammond,  1  Car.  &  K.  404 ; 


R.  V.  Ivens,  7  Car.  &  1'.  213;  Com.  v. 
Mitchell,  1  I'hila.  f>3;  Atwater  v.  Saw- 
yer, 76  Me.  639;  49  Am.  Rep.  6.^4.  A  re- 
fusal without  a  valid  excuse  is  indictable 
.It  common  law:  2  Kent's  Com.  592;  R.  r. 
Ivens,  7  Car.  &  P.  213;  Story  Bail.  §  470, 
and  under  the  statutes  of  some  of  the 
States;  see  N.  Y.  Code,  §  ?m.  lie  must 
give  the  guest  a  room  if  he  has  one,  but 
not  any  particular  room.  Fell  v.  Knight, 
8  iM.  &  W.  269. 

4  U.  V.  Ivens,  7  Car.  &  V.  213;  Howell  r. 
Jackson,  6  Car.  &  V.  725. 

8  Watson  V.  Cross,  2  Dnv.  147. 

6  Atwater  t'.  Sawyer,  76  Me.  539;  49  Am. 
Rep.  634. 

127 


P 

M 

0 
2 


§74 


INNKEEPERS. 


[part  I. 


with  a  contagious  disease;'  or  a  known  thief;^  or  a 
filthy  person,  disagreeable  to  other  guests;"*  or  one  who 
refuses  to  pay  in  advance;^  or  one  whose  intention  is 
to  commit  an  assault  on  a  guest/'  or  injure  the  business 
of  the  innkeeper."  Nor  is  ho  bound  to  receive  the 
guest's  dog,''  or  to  supply  him  with  a  room  in  which 
to  carry  on  his  trade  or  business;*  or  to  receive  such 
baggage  of  the  guest  as  appears  offensive  or  unsafe." 

§  74.     Duty  Only  Towards  Guests. — Again,  like 

the  carrier  of  passcngcr.s  wliose  duty  is  towards  those 
only  who  are  pat^scugers,  to  reudcr  the  innkeeper  liable 
as  such,  the  person  whose  ]>roperty  has  been  lost  or 
damaged,  or  whose  person  lias  been  injured,  must  be  a 
guest.  The  question  tlicn  .as  to  who  is  to  be  considered 
as  a  guest  becomes  an  important  one. 

It  appears  to  bo  well  set  I  led  iliat  to  constitute  a  per- 
son a  guest  he  must  be,  or  at  least  have  the  character 
of,  a  traveler.'^  The  traveler  is  none  the  less  a  guest 
because  he  may  have  made  a  contract  with  the  inn- 
keeper for  board  by  the  week''  or  mouth  ;'2  nor  does  the 
length  of  time  he  remains  alter  his  status,  provided  he 


1  Jlorin'-tv  i-.  IJrooks,  0  far.  &  V.  CH4  ; 
IIowolI  I'.  ,  icksnii,  G  Car.  &  V.  H'i;  U.  r. 
Ivcns,  7  Car.  &  1".  21.t;  Thompson  r. 
Lacy,  3  Uarn.  &  AUi.  2H1;  anil  prounils 
for  refusal  to  rcccivo  aro  koo'1  Kroiinds, 
on  their  bcint;  subsequently  diseovered, 
of  ejection;  Howell  r.  Jaeksnn,(>  Car.  & 
1'.  "42:  Com.  V.  Mitchell,  2  I'ars.  Cas.  4.'!1. 

2Markham  v.  Brown,  8  X.  U.  523;  31 
Am.  Dec.  209. 

■1/d. 

4  9  Coke,  87  b;  Hoc.  Abr.,  tit.  Inns,  C; 
Pinkerton  v.  Woodward,  33  Cal.  557;  91 
Am.  Dec.  G57;  Markham  v.  Brown,  8  N. 
U.  523 ;  31  Am.  Dec.  209. 

1  Markham  t'.  Brown,  supra. 

7  K.  V.  Kymcr,  2  Q.  15.  Div.  136. 

X  Burgess  v.  Clements,  4  M.  &  .S.  306. 

»  Schoul.  Bail.  §  258,  citing  Kellogg  f. 
Sweeney,  1  Lans.  400;  Myers  v.  Cottrill, 
6  Biss.  466;  R.  r.  Rymer,  2  Q.  B.  Div.  1.36; 

128 


Needles  r.  Howard,  1   K.   D.  Smith,  64. 

10  Seboul.  Bail.  5  2,56;  Story  Bail.  §  477; 
Bennett  r.  Mellor,  5  'I'erm  Hep.  273;  Nor- 
cross  r.  Noreross,  5:!  .Me.  163 ;  Lnsk  v. 
Belote,22Miun.  4'.8;  Manning  r.  Wells, 
Ollnmjih.  74G;  51  Am.  Dec.  G88;  Neil  v. 
Wilcox,  4  .Jones,  14G;  Towson  v.  Havre 
dc  Grace  Bank,  6  Har.  *  J.  47 ;  14  Am. 
Dec.  254;  McDaniels  r.  Uobinson,  26  Vt. 
316;  62  Am.  Dec.  574;  Bead  v.  Amidon, 
41  Vt.  15;  98  Am.  Dec.  560. 

11  Berkshire  Woolen  Co.  r.  Proctor,  7 
Cush.  417;  Hall  f.  Pike,  100  Mass.  495; 
Noreross  v.  Noreross,  53  Me.  163 ;  Jalie  v. 
Cardinal,  35  Wis.  118;  Smith  v.  Keyes,  2 
N.  Y.  Sup.  Ct.  6.50;  Luna  v.  Dwindle,  7 
Alb.  L.J.  44;  Plum  r.  Jarnier,  3  Month, 
L.  Bull.  36;  Bcalcf.  Posey,  72  AI.i.  ,323; 
Shoecraft  v.  Bailey,  25  Iowa,  5.53 ;  Boss  f. 
Mellin,  36  Minn.  421. 

12  Hancock  v.  Rand,  94  N.  Y.  1 ;  46  Am. 
Rep.  112;  Ross  v.  Mellin,  36  Minn.  421. 


.  ! 


cir.  viir.] 


INNKEKPEUS. 


§75 


retains  lii.s  char.aetor  as  a  travolor;'  nor  the  fact  that 
he  resides  in  the  same  town  or  (it  v.-  Ti»e  distinttiou  is 
woll  illustrated  in  a  Minnesota  ease,  where  A's  wife 
and  children,  after  living  somo  years  in  St.  Panl,  took 
board  at  a  hotel  in  that  city,  and  there  A,  who  resided 
in  another  State,  visited  them,  and  dnrini?  his  visit, 
ba}^j^ay;e  of  all  was  stolen.  It  was  held  that  the  hotel- 
keeper  was  liable  for  what  was  bronii-ht  by  A,  but  not 
for  what  was  brou}>ht  by  tln^  family.'' 

But  if  the  inn  is  his  permanent  home,  he  lacks 
the  reqnisit''s  of  a  traveler,  and  he  is  not  a  finest, 
but  only  f  'arder;*  nor  is  one  a  guest  who  sim- 
l)ly  obtain  jeshments  at  the  bar  or  restaurant;^' 

nor  one  who  attends  a  ball  given  on  the  premises,"  nor 
one  using  tlie  inn  to  deposit  his  goods  for  safekeeping, 
who  does  not  engage  entertainment  for  himself.'^  And 
he  must  use  the  inn  for  a  lawful  purpose.* 

§  75.  Duty  as  to  Guest's  Person. — As  regards 
the  person  of  the  guest,  while  it  does  not  seem  to  be  re- 
quired of  the  innkeeper  the  high  care  of  a  carrier  of  pas- 
sengers, still  he  must  see  to  it  that  the  guest  is  not  iu- 


1  story  Bail.,  §  477;  Norcross  v.  Nor- 
cross,  53  Me.  169;  Allen  r.  Smith,  12  Com. 
B.,N.  S  ,  G38;  Lusk  v.  Belote,  Ti  Minn. 
tea ;  Hancock  v.  Itimd,  04  N.  Y.  1 ;  46  Am. 
Ucp.  112;  Julie  v.  Cardinal,  3,'>  Wis.  118; 
Vanco  V.  Throckmorton,  C  Btish  41;  % 
Am.  Dec.  327;  I'inkerton  v.  Woodward, 33 
Cal.  5,')7 ;  '.n  Am.  Dec.  C.'>7. 

a  Walling  V.  Potter,  .S5  Conn.  183.  In 
this  case  the  Court  said:  "It  he  resides 
at  the  inn,  his  relation  to  the  innkeeper  is 
that  of  a  boarder;  l)nt  if  he  resides  away 
from  it,  whether  far  or  near,  and  comes 
to  it  for  entertainment  as  a  traveler,  and 
receives  it  as  such,  paying  tlie  customary 
rates,  wc  know  of  no  reason  why  ho 
should  not  be  subjected  to  all  the  duties 
of  a  guest  and  entitled  to  all  the  rights 
i»nd  privileges  of  one.    In  short,  any  one 


10 


away  from  homo  receiving  accommoda- 
tions of  an  inn  as  a  traveler  is  a  guest." 

3  Lusk  V.  Belote,  22  Minn.  4G8. 

4  Lnsk  V.  Belote,  22  Minn.,  468;  Man- 
ning V.  Wells,  9  Unuiph.  746;  51  Am.  Dec. 
688;  Neal  f.  Wilcox,  4  Jones,  146;  67  Am. 
Dec.  267. 

6  R.  V.  Uymer,  2  Q.  B.  Div.  136 ;  Fitch  v. 
easier,  17  Ilun.  126;  Gastenhofer  t'.  Clair, 
10  Daly,  265 ;  see  Kopperv.  Willis,  9  Daly, 
460 ;  liouser  v.  TuUy,  62  Pa.  St.  92 ;  1  Am. 
Rep.  ,H96. 

6  Carter  r.  Ilobbs,  12  Mich.  62;  83  Am. 
Dec.  762;  Fitch  i-.  Caslcr,  17  Hnu.,  126. 

r  Arcade  Hotel  Co.  v.  Wiatt,44  Ohio  St. 
32;  58  Am.  Rep.  785;  4  N.  E.  Rep.  398; 
Gellcy  V.  Clarke,  Cro.  Jac.  188;  see  Ly- 
nar  r.  Mossop,  36  U.  C.  Q.  B.  220. 

8  Curtis  V.  Murphy,  63  Wis.  4;  53  Am. 
Rep.  242;  22  N.  W.  Kep.  825. 

129 


m 


76 


INNKEEPERS. 


[PABT  I. 


jured  through  any  want  of  reasonable  care  on  his  part 
while  he  is  under  his  protection.*  He  is  under  a  duty 
similar  to  that  of  the  carrier  of  passengers  to  protect 
the  guest's  person  against  assaults  by  his  servants,- 
and  even  by  fellow  guests,  Avhere  he  has  an  opportunity 
to  do  so.^  So,  where  he  allows  a  guest  with  a  conta- 
gious disease  to  rema'u  in  his  house,  he  is  liable  to 
other  guests  who  thereby  contract  it.* 

§  76.  An  Insurer  of  Guest's  Property.— The  inn- 
keeper is  resi  oasible  for  the  safekeeping  of  property 
committed  to  his  custody  by  a  guest,  as  an  insurer, 
"nless  the  loss  or  injury  be  caused  by  the  negligence 
.•r  fraud  of  the  guest,  or  by  the  act  of  (Jod  or  the  public 
enemy.  This  liability  is  recognized  in  the  comr.ion  law 
as  existing  bj*  the  ancient  custom  of  the  realm,  and  like 
that  in  the  kindred  case  of  the  common  carrier,  had 
its  origin  in  considerations  of  public  policy.  It  was 
essential  to  the  interests  of  the  realm  that  every  fa- 
cility should  be  furnished  for  secure  and  convenient 
intercourse  between  different  portions  of  the  kingdom. 
The  traveler  was  peculiarly  exposed  to  depredation 
and  fraud;  he  was  compelled  to  repose  confidence  in  a 
host  who  was  subject  io  constant  temptation,  and  fa- 
vored with  peculiar  oppo^'tunitics  if  he  chose  to  betray 
Lis  trust.°  The  innkeeper,  is,  therefore  liable  for  the  loss 


1  Sandys  r.  Florencr,  47  L.  J.,  C.  I'.  O., 

ms. 

2  Wade  f.  'ihaycr,  40  Cal.  578. 

.■5  Roniinol  r.  Schambachcr,  120  Pa.  St. 
579;  6  Am.  St.  Hop.  7.'!2;  7  Atl.  Hep.  "Tft. 

*  Gilbert  v.  Ilolfnian,  6<>  la.  201 ;  55  Am. 
Bep.  2«.S;  23  N.  W.  Rlj'.  6,S2. 

fif'alye's  Case,  8  Coke,  32;  Mateer  r. 
Brown,  1  Cal.  221 ;  52  Am.  Dec.  SO.t;  Orin- 
nell  r.  Cook,  3  Itill  4H7;  .SH  Am.  Dec.  603; 
Walsh  r.  I'orterlleld,  87  I'a.  St.  .Wi;  Kam- 
aley  r.  Leiand,  4.)  N.  Y.  .Wl;  Uallonbake 
f.  Fish.  8  Wend.  547-  24  Am.  Doc.  88; 

130 


Neal  f.  Wileox,  4  Jones  146;  67  Am.  Dec. 
2fio;  IVUitrr.'w  c.  Itarnum,  11  Aid.  •4.S4; 
G9  Am.  Dec.  212;  I'inkerton  v.  Woodward, 
■43  Cal.  000;  91  Am.  Dee.  W.7;  Thiekston 
f.  Howard,  8  ISlaekf.  5,S5;  Sibley  r.  Ald- 
rieb,.W  \.  n..V.3;  66  Am.  Dee.  745;  Uu- 
lett  r.  .'^wift,  42  liarb.  24;t;  .S3  N.  Y.  571 ;  88 
Am.  Dee.  405;  I'ipertv  Manny,  21  Wend. 
282;  .Mason  r.  Thompson,  9  I'iek.  280;  20 
Am.  Dee.  471 ;  Uerkshire  Woolen  Co.  v. 
IVoetor,  7  (^nsh.  423;  Uiehmond  t;  Smith, 
8  llarn.  *  C.  9;  Morean  v.  Uavey,  6  Hurl. 
&  N.  277;  Day  v.  Bttthcr,  3  Hurl  &  V.  14; 


I 


CH.  VIII.] 


INNKEEPERS. 


§76 


of  his  guest's  property  in  the  inn,  even  where  it  arises 
from  a  fire  without  his  fault;*  or  from  burglary,  theft 
or  robbery,  whether  it  be  by  a  stranger,  a  servant 
or  a  fellow  guest-  He  is  bound  by,  and  liable  for  the 
acts  of  his  servants  or  those  permitted  to  take  their 
places,^  within  the  scope  of  their  authority.* 


Shaw  V.  Berry,  31  Me.  478 ;  62  Am.  Dec. 
628;  Norcross  v.  Norcross,  53  Me.  163; 
Shoecraft  r.  Bailey,  25  Iowa  553 ;  Man- 
ning V.  Wells,  9  nnmph.  746;  51  Am. 
Pec.  698;  Washburn  v.  Jones,  14  Barb. 
198;  AVeisenger  v.  Taylor,  1  Bush,  275; 
89  Am.  IJec.  626 ;  Burrows  v.  Tricber,  21 
M(J.  320;  83  Am.  Dec.  690;  S-  ■  r  r. 
Clark,  37  Ga.  242;  Cashill  i:  Wrifs..i,  ^  Kl. 
&B.  891;  Oppenhoim  r.  White  Lion  Ho- 
tel Co.,  L.  R.  6  Com.  P.  615;  Fuller  r. 
Coats,  IS  Ohio  .St.  3i:i;  Williams  r,  Earle, 
44  N.  Y.  172;  McDonald  v.  Ktigerton,  5 
Barb.  560 ;  Cheesborough  f.  Taylor,  12  Abb. 
I'r.  227.  In  the  English  case  of  Dawson  r. 
Ch.-nnpney ,  5  Q.  B.  174,  it  was  held  that  the 
innkeeper  is  liable  only  for  negligence, 
ami  the  same  view  seems  to  have  been 
taken  in  several  cases  in  this  country. 
Wee  Newson  f.  Axon,  1  MeCord,  609;  10 
Am.  Doc.  ()85;  Towsou  v.  Havre  de  Grace 
Bank,  6  H.ir.  &  J.  47;  14  Am.  Dec.  254; 
Uiird  V.  Eichold,  10  Ind.  212;  71  Am.  Dec. 
323;  Baker  f.  Dessauer,  49  Ind.  31;  re- 
versing Dessiiuer  v.  Baker,  1  Wils.  431 ; 
Howth  r.  Franklin,  20  Tex.  798;  73  Am. 
l;ec.  21S;  Cntler  f.  I'onney,  30  Mich.  259; 
18  Am,  Uep.  127 ;  Vance  r.  Throckmorton, 
eiiiish,  41;  76  Am.  Dec.  .327;  Johnson  v. 
Kicliarilson,  17111.  302;  63  Am.  Dec.  369; 
Ivistcn  r.  Hildebrand,  9  B.  Mon.  72;48 
Am.  Dec.  416;  Merrit  r.  Claghorn,  23  Vt. 
177;  Howe  Machine  Co.  t'.  Pease,  49  Vt. 
477;Metcalf  r.  Hess,  14  III.  129;  Mc- 
Daniels  r.  Hobinson,  26  Vt.  310;  62  Am. 
Dec.  574.  But  Dawson  r.  Champney 
has  been  severely  criticised  both  in 
England  and  America,  and  is  not  the 
law:  .See  Morgan  v.  Uavoy,  0  Hurl.  &  N. 
277;  Mateerr.  ISrown,  1  Cal.  221 ;  52  Am. 
Dec.  303.  Where  a  guest's  horse  in  the 
innkeeper's  stable  is  injured  by  a  horse 
of  another  guest  the  innkeeper  is  liable: 
Sibley  f.  Alilrich,  SA  N.  H.  6r)3;  66  Am. 
Dec.  745.  The  Innkeeper  is  held  liable 
as  such  for  a  horse  given  into  his  care. 


nlthongh  the  owner  is  not  a  gnest  a.\ 
the  inn:  Hilton  v.  Adams,  71  Me.  19; 
Yorko  i>.  Grenaugh,  2  Ld.  Raym,  866; 
Mason  u.  Thompson,  9  Pick.  280;  20  Am. 
Dec.  471 ;  McDaniels  v.  Robinson,  26  Vt. 
316;  62  Am.  Dec.  574;  Peet  v.  McGraw, 
25  Wend.  653 ;  Towson  v.  Havre  de  Grace 
Bank,  6  Har.  &  J.  47 ;  14  Am.  Dec.  254. 
This  mle  is  criticised  in  Grinnellr.  Cook, 
3  Hdl  491 ;  38  Am.  Dec.  663 ;  Ingallsbee  v. 
Wood,  33  N.  Y.  541 ;  36  Barix  452 ;  Healey 
r.  Gray,  68  Me.  489;  28  Am.  Rep.  80. 

1  Hulettv.  Swift,  33  N.  Y.  570;  88  Am. 
Dec.  405;  Ingallsbee  v.  Wood,  33  N.  T. 
577;88Am.  Dec.  577. 

2  Clute  f.  Wiggins,  14  Johns.  175;  7  Am. 
Dec.  449 ;  Hancock  r.  Hand,  94  N.  Y.  1 ;  48 
Am.  Rep  112;  Houser  v.  Tally,  62  Pa.  St. 
92;  1  Am.  Rep.  .390;  Walsh  r.  Porterlleld, 
87  Pa.  St.  376;  Dunbier  v.  Day,  12  Neb. 
696;  41  Am.  Rep.  772;  12  N.  W.  Eep.  109; 
Pinkerton  f.  Woodward,  33  Cal.  667 ;  91 
Am.  Dec.  657 ;  Mateer  r.  Brown,  1  Cal.  221 ; 
62  Am.  Dec.  303. 

3  Honser  v.  Tnlly,  62  Pa.  St.  92; 
1  Am.  Uep.  390;  Day  t'.  Bather,  2 
Hurl.  &  C.  14;  Pinkerton  v.  Wood- 
ward, 33  Cal.  557;  91  Am.  Dec.  0.57; 
Gilo  V.  Libby,  36  Barb.  70;  W^els- 
inger  v.  Taylor,  1  Bnsh,  276;  89  Am.  Dec, 
626;  Rockwell  f.  Proctor,  39  Ga.  106; 
Chamberlain  v.  Masterson,  26  Ala.  371; 
Smith  v.  Read,  52  How.  Pr.  14. 

4  Arcade  Hotel  Co.  v.  Wiatt,  44  Ohio  St. 
32 ;  54  Am.  Uep.  785 ;  4  N.  E.  Rep.  398 ;  Tay- 
lor t'.  Downey,  62  N.  W.  Rep.  716  (Mich.) 
where  the  hotelkeeper  was  simply  a 
bailee,  the  plaintiff  not  being  a  guest,  and 
it  was  said:  "Such  bailee  is  in  no  sense 
an  insurer,  as  an  innkeeper  is  sometimes 
said  to  be,  of  the  property  of  his  guest; 
but  he  may  be  held  liable  for  negligence 
upon  his  own  part,  or  the  negligence  of  a 
servant,  if  such  negligence  amounts  to  a 
want  of  ordinary  care.  If  a  li.ibility  is  to 
be  based  upon  negligence,  in  this  case,  it 

131 


0 

c 

2 

I 


; 


r 

S! 


\ 


§78 


INNKEEPERS. 


[part  I. 


§  77. .  At  What  Time  Liability  Begins.— Ordinar- 
ily, the  liability  of  the  innkeeper  commences  when  the 
goods  are  placed  in  his  custody  within  the  inn.  This 
does  not  mean  that  they  must  be  specially  put  in  his 
keeping;  it  is  sufficient  that  they  are  placed  within  the 
walls  of  the  inn  or  its  custody,'  or  where  his  servants 
have  directed  them  to  be  put."  80,  where  he  voluntar- 
ily assumes  to  take  them  sooner;  as  where  he  furnishes 
transportation  from  a  railroad  station  to  his  hotel  for 
guests  and  their  baggage;^  or  where  a  porter  of  the 
hotel  takes  them  in  charge  at  the  station.* 

§78.     At   What   Time   Liability   Emls. —Where 

the  relation  of  guest  is  established,  the  person  is  not 
obliged  to  remain  in  the  inu  to  keep  up  the  relation; 


must  be  based  npon  a  want  of  can-  in  the 
employment  of  the  nij^ht  clerk,  for  it 
cannot  be  said  that  the  elerk  was  negli- 
gent. On  the  contrary,  ho  committed  a 
felony  by  stealing  the  property,  not  only 
of  the  plaintiff,  bnt  the  defendant  also. 
It  was  done  while  in  eharire  of  the  olTlee 
by  virtue  of  his  employment.  It  wa^  a 
complete  and  deliberate  departure  from 
his  duty,  and  an  entering  npou  an  enter- 
prise of  his  own,  wholly  outside  of  the 
scope  of  his  employment.  'It  was  an 
illegal  act,  wilfully  done,  for  wh  h  the 
employi'r  cannot  be  re(|uiri'(l  to  respond.' 
See  opinion  of  I'atti'rson,  .7.,  in  Lyons  r, 
Martin,  8  Ad.  &  K.  312;  Utevens  v.  Wood- 
wanl,  CO  L.  J.  C.  I'.  2H1 ;  Foster  r.  Kssex 
ISank,  17  Mass.  47'.t;  Hank  r.  (iuelniartin, 
88  Oa,  7!»7,  15  S.  K.  Hep.  831;  Coiiip  f. 
IJank,94  Ta.  St.  40!t;  Haggerty  r.  li.  Co,, 
C9  Mieh.  .Sfifi,  »;  N.  W.  liep.  (Wit ;  .Sutherland 
r.  Ingalls,  G:)  .Alieh.  G20,  ,SI)  N.  W.  Uep.  342 ; 
Mecheui,  Ag.  74(i,  741." 

ilSennettf.  Mellor,  C  Term  Uep.  276; 
Packard  r.  Xorthcraft,  2  .Met.  (Ky  )  439; 
Norcross  f.  Xorcross,  53  Me.  IC,!;  llur- 
rowSf.  Triiber,  21  Md.  .TJO;  83  Am.  Dec. 
690;  McDonald  r.  Ivlgcrlon,  5  Harb.  5fi0; 
Kpps  f.  ninds,  27  Mi-s.  657;  fil  .\m.  Kec. 
628;  Ceuthore  v.  Ryder,  .  Kdm.  Sel.  Cas. 
'J94;  Cady  v.  Speucer,  4  K.  &  i\  306;  Ma- 

132 


loney  r.  Spencer,  33  Mo.  (App.)  501; 
Clute  f.  Wiggins,  14  .lohns.  175;  7  Am. 
Dec.  448.  Hut  see  Albin  r.  IVesby,  8N. 
n.  408;  29  Am.  I»ec.  G79.  Where  an  inn- 
keeper kept  a  bath-house  separate  from 
the  inn  it  was  lieM  that  hi!  was  not  liable 
for  goods  of  a  guest  st(den  from  there: 
Minor  v.  Staples,  71  Me.  316  ;  3P  Am.  Uep. 
318,  the  Court  saying:  "We  are  not  novr 
speaking  of  bathrooms  attached  to  or 
kept  within  hotels,  but  of  separate  build- 
ings, erected  upim  the  seashore,  and 
used,  not  as  bathrooms,  but  as  places  in 
which  those  who  bathe  in  the  sea  change 
thi'ir  garments,  and  leave  their  clothes 
and  otl'cr  vala!d)les  while  so  bathing.  It 
seems  to  us  that  such  an  establishment  is 
as  distinct  from  an  inn  as  a  wharf  or 
u  boathousc  wouhl  be;  and  that  an  inn- 
keeper, as  such,  can  no  more  be  made 
responsible  for  property  stolen  from  such 
a  bathhouse  than  he  couM  be  for  prop- 
erty stolen  from  a  wharf  or  a  boathonse, 
if  he  happened  to  be  the  Ici'eper  of  the 
latter  as  well  as  the  former." 

2  1'iper  V.  .Manny,  21  Wend.  ?S2:  .lonCB 
V.  Tyler,  3  Nev.  .t  M.  57S. 

»  Dickinson  r,  Winchester,  4  Cush.  lU; 
50  Am.  Dec.  760. 

4  .Sassen  v.  Clark,  37  Oa.  242. 


CH.  VIII.] 


INNKEEPERS. 


§79 


so  long  aa  he  has  not  signified  his  intention  of  leaving, 
ind  remains  responsible  for  the  charges,  he  may  absent 
himself,  but  the  innkeeper's  liability  continues  as  to  his 
goods,  as  before.*  Where  the  innkeeper  undertakes 
to  deliver  the  j^uest's  goods  at  some  place  outside,  as 
for  example  at  a  railroad  station,  his  liability  continues 
until  they  are  so  delivered.^  But  he  is  not  liable  where 
the  guest  directs  the  property  to  be  deposited  at  a 
place  outside  the  inn,  and  it  is  afterwards  injured 
there.^  Even  when  he  departs  for  good,  leaving  his 
goods  to  be  called  for,  the  innkeeper's  liability  con- 
tinues for  a  reasonable  time,  i.  c,  a  I'easonable  time  in 
which  he  may  remove  them.* 


ill  I 


§  79.  For  What  Property  Responsible. — Unlike 
the  case  of  the  carrier,  the  innkeeper's  responsibility 
is  not  limited  to  "baggage,"''  but  extends  to  all  goods 
and  chattels  which  the  guest  may  bring  to  the  inn," 


>  McDaniels  r.  Kobiuson,  26  Vt.  316;  t52 
Am.  Dec.  r.74  ;  28  Vt.  389;  07  Am.  Dop.  72. 
It  is  .>:iiid  that  in  the  case  of  iin  animal 
whi''h  llu'  innkcrpcr  by  IccdinK  iuul  tak- 
ini?  care,  of  may  continuo  to  mako  a 
profit,  ho  rcMiiaius  lialile  for  .siicli  after 
thr  (Tiie-t  departs  lea\  iut;  it  in  bis  hands. 
McDaniels  v.  Itoliinson,  SH/ird. 

a  Sassen  f.  Clark,  37  Ua.  2H ;  Giles  v. 
ranntlerov,  13  Md.  126. 

3  Hanley  v.  Smith,  25  Wend.  CO, 

*  Seymour  r.  Cook,  53  l?arb.  451 ;  Adam* 
V.  f'lein,  41  Ga,  05;  5  Am.  Uep.  524;  Mur- 
ray V.  Clarke, 2  Oaly  102 ;  (iiles  v.  Fauntle- 
roy,  13  Md.  12G;  .Miller  r.  Peejiles,  00 
Mi-s.  H13;  48  Am.  Uep.  423;  liendetson 
V.  Kreneb,  40  X.  Y.  200;  O'ltrien  i-.  Vaill, 
2'2  Fla.  627;  Murniy  v.  Marshall,  9 
Colo.  402;  5y  Am.  Kep.  152;  13  Pac. 
Uep.  5h;t;  Seymour  f.  Cook,  53  Barb. 
451;  see  Whitemore  v.  llnroldson, 
2  Lea.  ;!12;  Stewart  v.  Jlead,  70 
Cia.  44!(.  lint  where  Ibo  frnest  is 
ordered  to  leave  tlnj  inn  for  not  pay- 
ing; his  board,  and  departs  leuvinK 
his  baK)?agc,  tlic  innkeeper  is  a  bailee 


without  reward  as  to  it:  Lawrence  v, 
Howard,  1  CtaU  142. 

.1  See  the  legal  meaning  of  that  term, 
poH,  §  272. 

0  Berkshire  Woolen  Co.  f.  Proctor,  7 
Cnsh.  417;  Armistead  r.  Wilde,  17  Q.  15. 
261;  Kent  f.  .Shuekard,  2  llarn  &  Adol. 
803;  Epps  V.  Hinds,  27  Miss.  658;  61  Am. 
Dec.  528;  Kellopg  v.  Sweeney,  1  Lans. 
397;  Wilkins  v.  Karle,  44  N.  Y.  172;  4  Am. 
Rep.  605;  Snider  r.  (jeiss,  1  Y'eates,  34; 
Taylor  i'.  Moonot,  4  Duer.  116 ;  Needles  v. 
Howard,  1  E.  D.  Smith  54;  Van  Wyckst'. 
Howanl,  12  'low.  Pr.  147;  Hilton  v. 
Adams,  71  Me.  19;  Pinkerton  v.  Wood- 
wanl,  33  ('.,\.  o57 ;  91  Am.  Dec.  089 ;  Smith 
r.  Wilson,  36  Minn.  334;  31  N.  W.  Kep. 
176;  contra,  restrietinK  the  liability  to 
"bapiiape,"  see  Pettigrew  i'.  Harnum, 
11  Md.  434;  09  Am.  Dec.  213;  Giles 
f.  Fauntleroy,  13  Md.  120;  Treiber 
V.  Uurrows,  27  Md.  130;  Maltby  f. 
Chapman,  25  Md.  310 ;  Sassen  v.  Clark,  37 
(ia.  242;  Simon  r  Miller,  7  La.  Ann.  300; 
Profili't  V  Hall,  14  La.  Ann.  524 ;  Myers  r. 
Cottrill,  5  Hiss.  405;  Neal  t'.  Wilcox,  4 
Joues,  146;  67  Am.  Dec.  206. 


•r 


§80 


INNKEEPERS. 


[part  I. 


either  on  his  first  arrival,  or  while  he  is  a  guest.*  The 
innkeeper  is  not  liaJble,  however,  for  property  brought 
to  the  inn,  not  for  shelter,  but  to  prosecute  a  trade  or 
occupation  there.^ 

§80.     Contributory  Negligence  of  Guest.— The 

guest's  contributory  negligence  may  bar  his  recovery, 
and  this  may  take  place  either  in  his  failing  to  apprise 
the  innkeeper  that  his  goods  are  peculiarly  liable  to 
injury,^  or  in  his  not  using  towards  them  the  ordinary 
care  that  a  prudent  man  would  reasonably  be  expected 
to  have  used.*  It  has  been  held  not  negligence  per  se 
for  a  guest  to  keep  money  and  valuables  by  him, 
instead  of  depositing  them  in  the  inn  safe;^  nor  to  neg- 
lect to  lock  his  door,  though  furnished  with  a  key;®  nor 
to  be  intoxicated,  and  thereby  not  hear  a  thief  who 
gets  into  his  room  at  night;''  nor  not  to  inform  the  inn- 


1  Pinkerton  v.  Woodward,  33  Cal.  557 ; 
91  Am.  Die.  G58. 

8  Hnrpuss  v.  Clenu-nt?,  4  Manlo  A  S. 
306;  Myers  v.  Cottrill,  5  Uiss.  4tiS;  Mowurs 
V.  Fi'thers,  61  N.  Y.  84;  19  Am.  Uep.  244. 

3  Hcaley  v.  Gray,  68  Me.  489;  28  Am. 
Rep.  60.  Hut  see  Shoecraft  v.  Hailey, 
25  la.  6B3,  where  it  was  held  that  the 
jfnest  was  not  negligent  in  not  informing 
the  clerk  when  depositing  his  pocket- 
book  with  him  that  it  contained  money; 
and  see  Kubenstein  i-.  Cniikshanks,  54 
Mich.  190;  62  Am.  Uep.  S06;  16  N.  W.  Uep. 
964. 

4  Cashill  V.  Wright,  G  Kl.  &  H.  891,  per 
Erie,  J. ;  Oppenheim  f.  White  Lion  Hotel 
Co.,  L.  It.  G  Com.  1".  515;  Classen  t'.  Leo- 
pold, 2  Sweeny  205;  l»urvis  v.  Coleman, 
21  N.  Y.  Ill;  Jalie  r.  Cardinal,  ab  Wis. 
118;  Kelsey  v.  Berry,  42  111.  469;  Fuller  ti. 
Coats,  18  Ohio.  St.  34.'J;  Chamberlain  v. 
Masterson,  26  Ala.  S'l;  Eleox  r.  Hill,  98 
U.  S.  218;  Hadley  f.  Cpshaw,  27  Tex.  547; 
86  Am.  Dec.  654 ;  Fowler  r.  Dorlon,  24 
Barb.  384;  Johnson  r.  Uiehardson,  17  HI. 
302;  63  Am.  Dec.  369;  I'rolllit  r.  Hall,  14 
La.  Ann.  624;  Burgess  v.  Clements,  4 
Manle  &  S.  306:  Armistead  r.  Wilde,  17  (J. 
B.  261 ;  Burrows  v.  Trieber,  21  Md.  320 ;  83 

134 


Am.  Dec.  890;  Read  v.  Amidon,  41  Vt.  15; 
98  Am.  Dec.  560. 

6  .Jalie  V.  Cardinal,  35  Wis.  118;  Weis- 
cnger  v.  Taylor,  1  Bush,  278 ;  89  Am.  Dec. 
627;  Berkshire  Woolen  Mill  Co.  r.  Troc- 
tor,  7  Cnsh.  417;  Johnson  v.  Ri<'hardson, 
17  111.  302;  63  Am.  Dec.  369;  Schonl. 
Bail.,  §275;  Calye's  Case,8  Coke  .32;  I'ope 
V.  Hall,  14  La.  Ann.  324;  Smith  r.  Wilson, 
,H6  Minn.  334;  31  N.  W.  Rep.  176;  see 
l»urvis  t'.Coleman,  21  K.  Y.  111. 

6  Cayle's  Case,  8  Coke  82;  Mitchell  v. 
Woods,  16  L.  T.,  N.  S.,  671;  Classen  v. 
Leopold,  2  Sweeny  705;  Batterson  v. 
Vogel,  10  Mo.  App.  236;  Buddenburg  v. 
Benner^l  Hilt.  84;  Filipowski  r.  Merry- 
weather,  2  Fost.  &  F.  286;  Spring  f.  Ila- 
ger,  145  Mass.  186;  13  N.  E.  Uep.  439; 
Bohler  v.  Owens,  60  Ga.  186. 

7  Walsh  r.  I'orterlleld,  87  Pa.  St.  376. 
In  Kubenstein  t'.  Cruikshanks,  54  Mich, 
199,52  Am.  Uep.  806;  16  N.  W.  Uep.  954; 
it  was  ruled  that  it  was  no  defense  that 
the  guest  was  drunk.  "The  fact,"  said 
the  Court,  "that  the  plaintiff  got  intox- 
icated at  the  bar  of  the  landlord  should, 
if  anything,  cause  him  to  be  bcld  to  a 
stricter  liability." 


CH.  vin.] 


INNKEEPERS. 


§81 


keeper  that  there  is  no  lock  on  the  door  of  his  room;^ 
nor  to  consent  to  share  a  room  with  a  stranger;-  nor 
to  k^ave  his  valise  in  the  bar  room  instead  of  taking  it 
to  his  roora;^  nor  to  put  his  clothes  and  watch  on  the 
lounge  in  his  bedroom  or  leave  his  money  in  his  pocket- 
book  with  his  clothes.*  But  such  acts  may  be  evidence 
of  negligence,  justifying  a  jury  in  finding  against  the 
guest" 


§  81.    Limitation  of  Innkeeper's  Liability. — The 

innkeeper  has  a  right  to  notify  the  guest  that  money 
or  valuables  must  be  specially  deposited  with  him,  or 
he  will  not  be  liable,  and  such  notices  will  protect  the 
innkeeper^  except  as  to  losses  occurring  through  his 
negligence.^  It  is  essential,  however,  that  such  notices 
be  shown  to  have  been  brought  to  the  knowledge  of  the 
guest**  Where  the  proof  does  not  go  further  than  to 
show  that  the  notice  was  posted  in  the  guest's  room,* 
or  was  printed  on  the  hotel  register,^**  it  is  insufficient 
to  charge  the  guest  The  innkeeper's  common  law  lia- 
bility is  not  affected  by  his  posting  notices  in  his  house 
that  he  will  be  liable  for  the  goods  of  the  guest  only  on 
certain  conditions.^^ 

By  statute  in  a  number  of  States,  the  innkeeper, 
by  posting  a  notice  in  the  manner  provided,  that  money 


1  Lanier  v.  Yonngblood,  73  Ala.  887. 

i  Olson  V.  Grossman,  31  Minn.  222;  17 
N.  W.  Kep.  3». 

1  I'ackard  v.  Noithcraft,  2  Met.  (Ky.) 
439. 

4  Mnrchison  v.  Sergent,  69  Ga.  206 ;  47 
Am.  Ucp.  764. 

«  Jalle  V.  Cardinal,  3fl  Wis.  118 ;  Oppen- 
hoim  V.  White  Lion  Hoti'l  Co.,  L.  U.  6 
Com.  V.  51,5;  Iturfri'ss  t'.  Clomunts,  4 
Manle  &  H.  310;  Spice,  r.  liacon,  36  L.  T., 
N.  8.,  8n«;  Arinisti'Hil  r.  Wiltli',  17  Q.  11. 
261 ;  Herbort  v.  Markwcll,  Q.  IJ.  Div.  1881, 
cited  Laws.  Rights,  Item.  A  I'r.,  §  136. 

•  l»urvis  V.  Coleman,  21  N.  Y.  Ill;  l<"ul- 


ler  r.  Coats,  18  Ohio  St.  343;  Vanco  v. 
Throckmorton,  5  Hush  41 ;  96  Am.  Dec. 
327;  Packard  v.  Northcraft,  2  Met.  (Ky.) 
439;  Van  Wyck  r.  Howard,  12  How.  Pr. 
127;  Wilson  v.  Ualpin,  30  How.  Pr.  124. 

7  Schoul.  Hail.,  §  279. 

8  Purvis  v.  Coleman,  21  N.Y.  Ill ;  Fuller 
V.  Coats,  IS  Ohio  St.  343;  Read  r.Amidon, 
41  Vt.  15;  98  Am.  Dec.  560. 

9  Morgan  v.  Uavey,  6  II.  &  N.  266;  Uod- 
well  V.  Bragg,  29  Iowa,  '^32. 

10  Bernstein  v.  Sweeney,  33  N.Y.  Sup.  Ct. 
271;  Miltord  v.  Wesley,  1  Wils.  (Ind.)  119. 

11  Bodwellr.  Bragg,  29  la.  232;  Wood- 
ward V.  Birch,  4  Bnsh,  610. 

135 


T 


§81 


INNKEEPERS. 


[PAKT  I. 


or  valuables  are  to  be  deposited  with  him,  escapes  lia- 
bility if  they  are  lost  or  stolen  after  the  guest  has 
omitted  to  so  deposit  them.^  But  the  Innkeeper  is  lia- 
ble as  such  for  the  loss  of  such  valuables  before  the 
guest  has  had  an  opportunity  of  depositing  them,  and 
after  he  has  received  the  deposit  back  and  it  is  packed 
in  his  trunk  awaiting  his  departure  from  the  liotel- 

lu  other  States  he  is  not  liable,  after  giving  notice  to 
that  effect,  for  goods  stolen  from  a  room  left  unlocked 
by  the  guest.^  In  another,  he  is  liable  only  for  "bag- 
gage;"* in  another,  he  is  not  liable  for  merchandise 
kept  for  sale  or  sample,  by  a  guest,  unless  the  latter 
gives  him  written  notice  thereof.-^ 

In  other  States,  the  liability  of  the  innkeeper  for 
losses  by  fire  is  restricted  to  fire  caused  by  the  acts  of 
himself  or  his  servants;"  in  another,  his  liabilitj'^  is  re- 
stricted to  five  hundred  dollars.' 

To  obtain  the  advantages  of  their  limitations,  the 
provisions  of  the  statutes  must  be  strictly  followed;* 
if  they  require  notices  to  be  posted  in  bedrooms,  a  no- 
tice anywhere  else  is  of  no  effect.'** 


iStim.  Am.  Stat.  L.,  §  52.^.  Such 
statutes  art  in  force  in  Alnliama,  Cali- 
fornia, Delaware,  Dakota,  (icorRia,  Illi- 
nois, Iowa,  Kentucky,  Louisiana,  Mary- 
land, Michigan,  Minnesota,  Missouri, 
Nebraska,  New  Jersey,  New  York,  Ohio, 
Fenusylvania,  Khoilu  Island,  Tennessee 
and 'Visconsin.  Kleox  r.  Hill,  !)8  17.  S. 
218;  Wilkins  r.  Karle,  44  N.  Y.  172;  4 
Am.  Rep.  (105.  llavinft  (li'imsiti'il  the  val- 
uables as  re(|uired.  the  iiinkicper  is  liable, 
notwithstanding  the  lar^-eness  of  the 
amount.  Wilkins  r.  Karle,  H  N,  Y.  172 ; 
4  Am.  Kep.  W5.  It  is  Kener.iUy  held  that 
the  statute  does  not  extend  to  everytUinfC 
in  the  way  of  money  and  jewelry  tlie 
guest  may  have,  but  only  what  is  beyond 
his  orliuary  necessities  fiom  day  to  day. 
liernstein  r.  Sweeney,  33  N.  Y.  Sup.  Ct. 
271 ;  Mallliy  v.  Chapman,  25  Md.  ;!10;  Mil- 
ford  t'.  Wesley,  1  Wils.  (Ind.)  ll!t;  Mur- 
chison  r.  Sertrent,  69  Cia.  2.^0;  47  Am. 
Kep.  754;    Krohn  i',    Sweeney,    2    Daly 

136 


200;  sec  Hyatt  v.  Taylor,  42  N.  Y.  258; 
Kosenlleuter  v.  Uoessle,  54  N.  Y.  2C2 ; 
overruling  Gile  v.  Libby,  36  Harb.  70; 
Uamaley  f.  Leland,  43  N.  Y.  540;  3  Am. 
Itep.  7-'8;  overruled  in  Kosenlleuter  v. 
Roessle,   siipra. 

3  liendetson  r.  Freneh,  41)  N'.  Y.  270. 
3l'a.  Stat.  Inns.  11);  Del.  V.  14.  447. 

4  Noble  V.  .Milliken,  77  Me.  S59. 

8  Fisher  r.  Kelsey,  16  Fed.  Uep.  71;  121 
U.  S.  383;  Ileeker  v.  llaynes,  '29  Fed. 
Kep.  441. 

6  .Mo.  U.  S.  1879,  §  5786;  Wis.  K.  S.  §  1726; 
N.  Y.  Aet.  1866,  c.  C38.  See  Faucett  v, 
Nichols,  4  Th.  &  C.  597. 

7  N.  Y.  Stats.  1883,  c.  227. 

«  L,anier  r.  Youngblood,  73  Ala.  887; 
Iteale  r.  IVj.-ey,  72  .Via.  .S23;  Fisher  v, 
Kelsey,  16  Fed.  Kep.  71 ;  121  U.  S.  383. 

SHatterson  r.  Vogel,  8  Mo.  (App.)  24; 
Olson  f.  Crossman,  31  Minn.  222;  17  N. 
W.  Kep.  375. 


.t 
(, 

'i 


OH.  VIII.] 


INNKEEPERS. 


§82 


§  82.  The  Innkeeper's  Lien.  —  The  innkeeper's 
lien^  extends  to  all  property  entrusted  to  him  by  the 
guest,  even  though  it'  may  not  belong  to  him,  provided 
the  innkeeper  does  not  know  the  real  state  of  the  case;- 
and  even  though  they  are  goods  which  the  innkeeper 
was  not  bound  by  law  to  receive;^  or  are  chattels  ex- 
empt from  execution.^  The  property  must  be  received 
by  the  innkeeper  from  a  traveler  or  guest,  in  order  to 
create  a  lien,^  but  it  extends  to  the  horses  and  carriages 
of  the  guest  both  for  the  charges  for  their  keep,  and  for 
the  guest's  personal  entertainment" 


1  For  II  Rcnoral  explanation  of  the  lien 
of  .1  haili'C  SL'O  ante  §  2". 

SDiinlapf.  Thorni',  1  Kicli.  213;  (irin- 
ncll  f.  Cook,  3  Hill  488;  38  Am.  Dec.  <W,!; 
Manning  v.  Hollenbi-ck,  27  Wis.  202; 
Nichols  f.  Ilalliday,  27  Wis.  400;  John- 
son f.  Hill,  2  Stark.  172;  Cook  r.  Kaue, 
ISOrt'^'on;  5"  Am.  Kep.  28;  11  Pac.  Keii. 
226;  Covintrton  v.  NewbtTger,  <)9  N.  O. 
623;  6  S.  K.  Uep.  20,5;  Fox  r.  Mc- 
Gregor, 11  Harb.  41 ;  King  r.  Hichanls, 
6  Whart.  418.  Where  a  statute!  restricts 
the  lien  to  the  "baggage  or  other  valu- 
ables of  the  guest  "the  innkeeper  may 
have  a  lii'n  for  storage  charges  on  prop- 
erty of  third  persons  brought  to  the  inn 


by  the  guest.  Wyckoff  v.  South,  notel 
Co.  24  Mo.  (App.)  382. 

siJerkshire  Woolen  Co.  v.  I'rocter,  7 
Cush,  417. 

4  Swan  V.  Bournes,  47  lu.  501 ;  29  Am. 
Kep.  492. 

«  Uurst  V.  Bycrs,  29  Mo.  496;  Pollock  v. 
I^andis,  3G  la.  651 ;  Kwart  r.  .Stark,  8  Uich. 
423.  Uy  statute  in  some  States  the  lien  IS 
extended  to  boarding-house  keepers. 

fi  Fox  V.  Mc(;regor,  11  Marb.  41 ;  Pol- 
lock r.  I.andis,  aiipra;  Mason  v.  Thomp- 
son, 9  Pick.  2S0;20  Am.  Dec.  471;  Mc- 
Daniels  r.  Uobinson,  36  Vt.  316;  62  Am. 
Dec.  574;  Peet  ti.  McUraw,  25  Wend.  683. 

137 


; 


r 


m 


ft;  I 


Illllfatffclft- 


PART  II. 


THE  COMMON  CARRIER  OF  GOODS. 


139 


'A 


r 


m 


', 

Ctl AFTER  IX. 


INTRODUCTORY. 


'|tl 


Skction  83.  Who  are  Common  Carriers. 

84.  The  Different  Classes  of  Common  Carriers. 

86.  Who  are  not  Common  Carriers. 
80,  Carriers  of  Live  Animals. 

87.  Divisions  of  the  Sul)ject. 

§  83.  Who  are  Common  Carriers.  —  A  common 
carrier  is  ono  who  undertakes,  for  Hire,  to  transport 
the  goods  of  such  as  choose  to  employ  him,  from  i)laee 
to  place.^  In  the  leading  case  in  England  of  Nugent  v. 
Smith,-  it  is  said  that  the  test  as  to  whether  one  is  a 
common  carrier  or  not  is  ^'whether  he  holds  out,  either 
expressly  or  by  a  course  of  conduct,  that  he  will  carry 
for  hire  so  long  as  he  has  room,  the  goods  of  all  per- 
sons indifferently,  who  send  him  goods  to  be  carried," 
and  this  is  the  test  applied  in  a  large  majority  of  the 
American  cases.^ 


1  Parker,  C,  .1..  in  UwigUt  r.  Hniwstcr, 
pott,  Mr.  Justice  Cliirord  ill  The 
Niagara  v.  Cordes,  21  llow.  7;  Moss  w. 
Ucaltie,  4  Heisk.  G«l ;  13  Am.  Uep.  1 
(1871);  Uwiglit  V.  Urewster,  1  Pick.  50; 
11  Am.  Dec.  13.!;  The  Nliigani  v.  Conies, 
21  How.  7;  (;isl)ourn  v.  Hurst,  1  Salk. 
J49;  McCIures  v.  llamiiiond,  1  l!ay  99; 
1  Am.  Dec.  598 ;  Craig  r.  Childress,  Peck. 
270;  14  Am.  14  Am.  Dec.  751 ;  Hobertson 
V.  Kennedy,  2  Dana  43U;  2fi  Am.  Dec.  itiG; 
Doty  t).  Strong,  IPinu.  313;  40  Am.  Dec. 
773;  Fish  t).  Chapman,  2  (ia.  349;  40  Am. 
Dec.  393;  Vcrner  v.  Switzer,  32  Pa.  St. 
208.  The  dellnition  of  I'urker,  C.  J.,  is 
regarded  as  the  most  concise,  and  is 
adopted  in  many  adjudged  cases.  In 
Uisbourn  v.  Ilnrst,  1  Salkeld.  249.  he 
is  said  to  be  "any  man  uniiercaKing  lor 
hire  to  carry  the  goods  of  all  persons 


indifferently."  This  is  said  by  Gibson, 
C.  J.,  in  Gordon  r.  Hutchinson,  1  Watts 
&  S.  285,  to  be  "the  best  di'lliiition  of  a 
common  carrier  in  its  application  to  the 
l)usliiess  of  tliis  country."  tor  other 
dellnitions  see  2  Kent  Com.  598;  Story 
]?ail.  §  495;  Uutch.  Carr.  §  47. 

2  I,.  1{.  1.  C.  P.  Div.  19. 

SFish  i\  Clarke,  2  Laus.  17G;  49  N.  Y. 
122;  Allen  v.  Sackrider,  37  N.  Y.  341; 
Dwight  r.  IJrewster,  1  Pick.  50;  11  Am. 
Dec.  133 ;  Citizens'  IJank  v.  Nautncket 
Steamboat  Co.,  2  Story  17 ;  Satterlec  i'. 
Groat,  1  Wend.  272;  Chevallier  f.  Stra- 
ham,  1  Te.\.  115;  47  Am.  Dec.  039;  Samins 
r.  Stewart,  20  Ohio  69;  55  Am.  Dee.  446; 
Steele  v.  McTyer,  31  Ala.  «;i7 ;  70  Am. 
Dec.  516;  Mershon  v.  Uabensock,  22  N. 
.;.  L.  372;  Uarrisou  v.  Uoy,  89  Miss.  3M; 
The  Dan,  40  Fed.  Rep.'691. 

141 


rii 


83 


INTRODUOTORT. 


[part  II. 


Whore  a  person  does  not  come  within  this  test — as 
where  he  is  not  in  the  business  of  carrying,  but  is  em- 
ployed to  undertake  the  carriage  of  another's  goods  on 
a  particular  occasion,'  he  is  a  mere  private  carrier,  lia- 
ble only  as  a  bailee  for  hire,=^  for  the  want  of  or- 
dinary diligence,-'  and  able  (unlike  the  common  car- 


1  Fish  f.  Clark,  2  Liins.  176 ;  49  N.Y.  12i ; 
Allen  f.  Sackrider,  37  N.  Y.  341;  Tikf  f. 
Marsh,  3  Abb.  App.  610;  IVnniwill  f. 
Cnllun, 6  Harr.  (Del.)  2.S8;  Htltr.  Dunn, 
42  Cia.  528;  6  Am.  Uep.  544.    In  the  lead- 
ing American  case  of  Fish  r.  Chapman,  2 
Ga.  349,  46  Am.  Dec.  393,  the  defendant 
was  a  farmer  who  was  employed  by  tlie 
plaintiff  to  carry  his  goods  to  a  certain 
place,  and  while  crossing  a  stream  hit. 
wagon  was  upset  and  the  goods  injured. 
It  was  held  that  he  was  not  a  common 
carrier  nor  liable  as  such.    In  Nugent  v. 
Smith,  ante,  Brett,  J.,  refers  to  this  case 
as  "a  powerful  and  business-like  Judg- 
ment."   A  contrary  doctrine  is  laid  down 
in  Pennsylvania  in  Gordon  i".  Ilutchin- 
gon,  1  W.  &  S.  2S5;  37  Am.  Dec.  4t>4,  and 
Chouteau  v.  Leach,  18  I'a.  St.  224 ;  67  Am. 
Dec.  602.  See  also  Powers  f.  Davenport,  7 
Blackf.  497;  43  Am.  Dec.  100;  McClure  v. 
Kichardson,  Kice,  215;  Morris  v.  Norris,  4 
N.  n.  304;  Chevullier  v.  Straham,2  Tex. 
115.    Mr.  Hutchinson  (Carr.,  §  52),  after 
a  review  of  the  tour  cases  from  Ulackf., 
Bice,  4  N.  11.  and  2  Tex.,  which  are  uni- 
formly cited  with  Gordon  v.  Uutchinson 
as  giving  support  to  the  position  there 
taken,  that  one  may  become  a  common 
carrier  from  a  casual  employment  pro 
hac  vice,  concludes   that   they  will   be 
found  upon  examination  to  add  but  little 
if  any  weight  to  that  view  of  the  ques- 
tion.   In  Moss  v.  Bettis,  4  IIeisk.,661;  13 
Am.  Rep.  1  (a  ease  in  its  facts  much  like 
Fish  r.  Clark  and  Fish  t'.  Chapman)  the 
defendant  was  a  farmer  who  "after  his 
crops  were  laid  by"  would  run  boats  for 
himself  or  any  one  else  who  would  em- 
ploy him.    He  had   built  a  flat-boat  to 
transport  to  market  a  cargo  of  his  own 
staves,  but  at  the  instance  of  the  plain- 
tiff, abamloned  that  project  and  loaded 
his  own  and  another  boat  furnished  by 
the  plaintiff  with  the  plaintiff's  lumber, 
and  undertook  to  carry  it  by  river  to 
market.    The  boats  struck  some  obstruc- 

142 


tion  in  the  river  and  were  sunk,  occa- 
sioning the  loss  of  some  of  the  lumber. 
The  .'Supreme  Court  of  Tennessee  held 
that  the  defendant  was  a  common  car- 
rier in  the  ser\-ice  he  had  undertaken 
and  liable  as  such.  Citing  Craig  f.  I'hiW 
ilress,  reck,  270;  Johnson  v.  Friar,  4 
Yerg.,48;  Jordan  v.  Buchanan,  6  Yerg., 
71 ;  Turney  v.  Wilson,  7  Y'erg.,  340.  Notic- 
ing this  case,  at  some  len/th,  Mr.  Hutch- 
inson (Carr.,  §  62),  then  a  member  of  the 
Tennessee  bar,  says:  "This  exception 
by  the  Tennessee  courts  to  the  comuion 
law,  which  has  brought  into  the  family 
of  common  carriers  a  class  which  does 
not  properly  belong  there,  seems  to  be 
conflnt'd  to  carriers  by  river  craft,  and 
to  have  been  flrst  made  because  the 
prevalence  of  this  mode  of  transporta- 
tion seemed  to  make  it  necessary  that 
such  carriers  should  be  held  to  a  stricter 
accountability  than  mere  private  car- 
riers. To  this  extent  it  is  still  adhered 
to  as  established  by  precedent,  although 
it  may  now  and  then  occasion  a  hiird- 
ship  to  the  accommodating  carrier,  even 
when  he  is  not  to  blame,  as  it  seems  to 
have  done  in  the  case  last  stated.  As  to 
carriers  by  land,  the  rule  seems  to  be  as 
at  common  law.  Walker  r.  Skipwith, 
Meigs,  602." 

2  See  ante,  §  49,  or  if  he  carry  gratuit- 
ously, liable  only  as  a  gratuitous  bailee; 
Coggs  r.  Bernard,  ante;  Ilutton  v.  Os- 
borne, 1  Sel.  N.  V.  462 ;  Colyar  t'.  Taylor,  1 
Cold,  372;  Jenkins  v.  Motlow,  1  Sneed, 
248;  Nelson  f.  Mackintosh,  1  Stark.  2.S7; 
Adams  Kx.  Cr.  v.  Cressap,  6  Bush,  672; 
Fay  V.  The  New  World,  1  Cal.  348 ;  Pen- 
der V.  Bobbins,  6  Jones,  207. 

^Ante  §  49;  Coggs  v.  Bernard,  ante; 
Rogers  v.  Head,CroJac.  262;  Brind  r. 
Dale,  8,  C.  &  P.  207;  Caleff  v.  Danvers,  1 
Peake,  N.  P.  114;  Whalley  v.  Wray,  3 
Eep.  74 ;  Robinson  t.  Dnnmore,  2  B.  ft  P. 
416;  Bowman  v.  Teall,  23  Wend.  306. 


C 

I 


on.  IX.] 


INTRODUCTORY. 


§84 


! 


rier,  as  we  shall  soo),^  to  got  rid  of  his  responsibility,  ex- 
cept for  frau^,  by  contract  with  his  employer.^ 

§  84.  The  Different  Classes  of  Common  Carriers. 

— The  common  carrier,  exercising  as  he  does  his  call- 
ing on  land  and  water,  with  the  aid  of  steam,  horse 
or  other  power,  is  known  by  a  variety  of  names. 
Therefore,  boatmen  of  every  description — lightermen, 
hoymen,  bargemen,  or  however  called — upon  rivers, 
lakes  or  the  sea,''  canal  boatmen  and  canal  companies,* 
city  exj)ress  companies  engaged  in  carrying  baggage  or 
other  goods  from  and  to  railroad  stations,  private 
houses  and  hotels,''  owners  of  land  vehicles  not  em- 
ployed on  any  regular  line,  but  used  for  the  carriage 
of  goods  for  hire  to  places  in  the  same  or  a  near  neigh- 
borhood, as  draymen,  carters,  truckmen,  wagoners,"  ex- 
pressmen and  ex[)rcss  companies,  or  transportation 
companies  forwarding  goods  from  place  to  place  for 
hire,  either  in  their  own  conveyances,  or  in  conveyances 
owned  and  managed  by  others;^  ferrymen  (as  to  the 


1  Post  §  isa. 

»  Wells  f.  StCiMn  Nav.  Co.,  2  Comst. 
204;  Alexander  r.  Greene,  3  Hill,  9. 

«  Story  IJail.  §4!><';  I'irvpv  v.  Uose,  2G 
Ark.  3;   7   At      Rep.  WycLoff  v. 

Qneen^  '"o.  rry  Co.,  82  N.  Y.  32;  H 
An    ■  innate  r.  Christie,  3  C.  & 

K 

♦  rington  f.  I^yles,  2  it  &  McC. 
88;  '  iliamst'.  Itrnnaon,  1  Murpb.  417; 
4  Am.  lM-c.  6»''  ,  Spencer  v.  Daggett,  2 
Vt.iV2;  Fuller  .  Itrndlcy,  25  Va.  !^t.  120; 
Do  Mott  f.  Liiiiiway,  14  Wend.  225;  28 
Am.  Dec.  52H;  Parsons  v.  Uardy,  14 
Wend.  21.'>,  28  Am.  Dec.  521;  Uyde  r. 
Trent.  Nav.  Co.,  B  T.  U.  .SS9;  Trent  Nav. 
Co.  f.  Wood,  3  Ksp.  127;  Arnold  t'.  Hal- 
lenbake,  5  Wend.  3,1;  ISowman  r. 
Tcall,  23  Wend.  306;  Humphreys  r. 
Kced,  G  Wliart.  435.  lint  see  Penn.  Canal 
Co.  f.  Uurd.yOPa.  St.  281;  .S5  Am.  Hep. 
•69;  Watts  r.  Canal  Co.,  64  Ga.  88;  37  Am. 
Be  p.  53. 


»  Uichards  r.  Westcott,  2  Bosw.  6§i); 
Verner  r.  Sweitzer,  32  Pa.  St.  208. 

6  .Story  on  Hail.  §  496;  2  Kent  Com.  598; 
Uichards  v.  Westcott,  2  Rosw.  589;  Gor- 
don r.  Hutchinson,!  Watts  &  S.  285;  37 
Am.  Dec.  464  ;  Uobertson  v.  Kennedy,  2 
Dana  430;  28  Am.  Dec.  466;  Chevallierr. 
.Straham,2Tex.  115;  47  Am,  Dec.  639; 
Philleor.  Sanford,  17  Tex.  227;  67  Am. 
Dec.  654;  Seligmau  r.  Armijo,  1  N.  M. 
459.  Whether  a  drayman  or  truckman 
who  carries  goods  from  one  part  of  the 
city  to  another  is  a  common  carrier  is 

■iiaeried  in    Charles   v.  Lasher,  20  111. 
.\pp)36. 

7  linckland  v.  Adams  Ex.  Co.,  97  Mass. 
124;  93  Am.  Dec.  68;  Christenson  r. 
American  Express  Co.,  16  Minn.  270;  2 
Am.  Uep.  122;  Lowell  Wire  Fence  Co.  r. 
^argent,  8  Allen,  1S9;  Sherman  v.  Wells, 
2SItarb.  403;  Baldwin  v.  American  Ex- 
press Co.,  23  111.  197;  74  Am.  Dec.  190, 
Head  V.  Spanlding,  5  Bosw.  395;  Haslam 

143 


I 


§84 


INTRODUCTORY. 


[part  II. 


baggage  of  their  passengers,  and  as  to  all  goods  or  chat- 
tels which  they  make  it  their  business  to  transport);* 
hacknicn  and  cab  drivers,-  omnibus  lines  and  proprie- 
tors,'' horse  and  street  railroads,'  railroads  whose  mo- 
tis^e  power  is  steam  or  electricity .'^  ships  and  vessels,* 


r.  Adams  Express  Co.,  6  Bosw.  235; 
Sweet  V.  liarney,  23  N.  Y.  335 ;  Veiner  i-. 
Sweitzer.sa  Pa.  St.  2uS;  Sontliern  Kx- 
prcss  Co.  1'.  Newby,  36  Ga,  (135 ;  lU  Am. 
Dec.  78^;  Kichai-as  r.  Weatcott,  2  RooW. 
5S9;otuilheckcr  f.  Combs,  1  Uich.  103; 
Bank  of  Koiitucky  r.  Aiiaraa  Kxprcss 
Co., 03  U.  .'^.  174;  Cinlliver  r.  Adamr  Kx- 
pres::  Co.,  38  111.  003;  Mercantile  Ins.  Co. 
r.  Cliase,  1  E.  1).  Smith,  11".;  U.  S.  Kx- 
press  f.  Bucliiinan,  28  Ohio  St.  144; 
Haycrt  V.  Wells,  23  Ciil.  ls'> :  83  Am.  Dec. 
Mt;  Am.  Kxpress  Co.  v.  Uockot;,  30  Ind. 
2.TO;  <J5  Am.  Dec.  GOl ;  Merchants'  Dis- 
patch Trans.  Co.  r.  Hlocli,  80  Tenn.3'.»2; 
GAn.  St.  Uep.  847;  ti  S.  \V.  Kep.  SSI; 
Overl.'ind  Mail  Co.  v.  Carroll,  7  Colo. 
43;  1  I':ic.  Kep.  3G2;  Sonth.  Ex.  Co.,  r. 
Hess,  53  Ala.,l'.t;  Krcmlet  v.  Wolcott, 
1  Uilt.  223.  Contra,  the  early  case  of 
Koberls  f.  Tnr'-'-r,  12  ,)ohns.  232;  7  Am. 
Dec.  311;  and  see  Hooper  r.  Wells,  27 
Cal.  11;  85  Am.  Dec.  2U. 

1  Sanders  v.  Voun«,  1  Hea<l,  210;  73 
Am.  Dec.  17.5;  Cohen  r.  Hume,  1  Mc- 
Cord  430;  I'omeroy  >•.  Donaldson,  6  Mo. 
36;  Albright  r.  renn,  14  Tex.  20i):  Clay- 
pool  r.  JIcAUister,  20  III.  .^04;  Fisher  f. 
Clisbee,  12II1.  344;  Wilson  c.  Hamilton, 
4  Ohio  St.  722;  llaivey  r.  K(>se,26  Ark.  3; 
7  Am.  l!ep.  505;  I'owell  r.  .Mills,  37  Miss. 
631;  Hiill  r.  Kenfro,  3  Met.  (Ky.)  51 ;  Self 
r.  I>nnn,  42  (ia.  62b;  5  Am.  Kep.  544, 
Cook  r.  <;oui'<iine,  2  Xv)tt  &  JlcC.  10; 
Whitmore  r.  Bowman,  4  G.  (ireene  148; 
Babcock  r.  Herbert,  3  Ala.  .302;  37  Am. 
Dec.  G05;  Miller  r.  I'eudlcton,  8  Gray 
047;  Smith  v.  Seward,  3  I'a.  St.  342;  (irif- 
Uthf.  Cave,  22  Cal.  535;  83  Am.  Dec.  8J; 
May  f.  HanHon,5  Cal.  3ii0;  t'.'<  Am.  Dec. 
1.35;Littlcjohn  f.  .Tones,  2  MeMull  305; 
30  Am.  Dec.  132;  White  v.  Wimisimmct 
Co.,7(uHh.  15.1. 

2  Bonre  r.   U.  U.  Co.,  53  Iowa  278;  S6 
Am.  U.p.  221,5  X.  W.  Itep.  177;  I.emon  i 
Cbansle.-,  G8  Mo.  34n;:)0  Am.  Hep.  I'X). 

»  "annelee  f.  McNnliy,  10  III.  556; 
^'■u-inelee  r.  I.owitz.  74  111.  UG;  24  Am. 
nep.  27G;  Dibble  r.  Brown,  12t;a.  217;58 
Am.  Dec.  4G0.  By  statute  in  Iowa  Code, 

144 


§  2183.  In  the  first  case  the  Court  said 
that  it  was  "anthorizeil  to  take  notice 
!hat  the  owner  of  an  omuibim  line  is  a 
common  carrier  Just  as  much  as  the 
owner  of  a  railroad  or  a  line  of  steam- 
boats." 

4  Le  y  f.  U.  U.  Co.,  11  Allen,  300;  87 
Am.  Dec   713. 

u  Story  on  I!ailraent8,§4U6;  Sontbwcst- 
crn  U.  Co.  v.  Webli,  48  Ala.  5S5  ;  Norway 
Plains  Co.  r.  It.  Co.,  1  (Jiay  203;  61  Ara. 
Dec.  423;  Cliicago  etc.  U.  Co.  r.  Thomp- 
son, n  III.  578;Knllerr.  K.  Co.,  21  Conn. 
.170 ;  Jones  v.  U.  Co.,  27  Vt.  ,300;  65  Am. 
Dec.  2U(i;  Uogers  Loc.  Works  r.  U.  Co., 
20  N.  J.  Ecj.  370;  Selmn  etc.  U.  Co.  v. 
Bntts,  43  Ala.  385;  04  Am.  Dec.  694; 
I'ahcy  t'.  K.  Co.,  70  Ga.  507;  2  Am.  St. 
Ucp.  58.  A  raih-ond  company  receiving 
freitjht  before  the  road  is  completed, 
and  when  it  is  only  running  construction 
trains  ia  a  common  carrier.  Little  Uock, 
M.  Ry.  Co.  r.  Glidewcll,  39  Ark.  487. 
It  has  been  held  that  il  the  owner 
of  the  goods,  by  contract  with  a 
railroad,  hire  from  it  cars  for  the  load- 
ing and  transportation  of  the  goods,  the 
road  agreeing  to  furnish  the  motive 
power  and  the  use  of  its  road  only  in  the 
transportation,  the  railroad,  in  tbas 
transporting  the  goods,  does  not  do  so 
in  thecapaciiy  of  common  carrier,  and 
that  it  will  not  be  held  liable  lor  any 
loss  or  damage  to  the  goods,  unilcr  such 
circumstances,  not  occasioned  by  its 
negligence.  Kast  Tenn.  etc.  U.  Co.  t'. 
Whittle,  27  (ia.  .535;  Kimball  v.  U.  U.  Co._ 
26  Vt.  247 ;  Ohio,  etc.  P..  Co.  v.  Dunbar,  21) 
III.  b23.  N(ir  a  railroad  contracting  to 
trans|>orla  menagerie  in  cars  owned  and 
controlled  by  the  owners  of  the  me- 
nagerie. Coup  f.  Wabash  etc.  K.  Co., 
5G  Mieh.  Ill;  5G  Am.  Kep.  Ill;  22  N.  W. 
Kep.  'il5.  But  in  other  cases  it  is  ruled 
that  umler  such  circumstances,  the  rail- 
.oad  company  is  still  liable,  as  a  common 
(,arri'-'r,  for  the  safety  of  the  goods. 
.  lalloy  f.  K.  K.  Co.,  33  Barb.  4SI  ;  Han- 
nibal etc.  K.  Co.  r.  .Swift,  12  Wall.  262. 

0  Morse  v.  Slue,  1  Vent.  190;  I^vcroni 


.kiiJL 


CH.  IX.] 


INTRODUCTORY. 


§84 


whether  the  transportation  be  from  port  to  port  within 
the  sume  country,  or  beyond  the  sea/  these  including 
sailing  ships  or  steam  vessels  engaged  in  the  coasting 
tra<le  or  upon  the  lakes  or  navigable  rivers;-  and  stage 
coach  proprietors,''  are  all  common  carriers.     In  Colo- 


V.  Drnry,  8  Ex.  1G6;  BoEon  v.  Sanford,  2 
Salk.  440;  Clark  v.  Harnwell,  12  How. 
272;  The  Niagara  v.  Conies,  21  llow.  7; 
The  Delaware,  14  Wall.  679;  The  MaRgio 
t'.  Ilammond,  9  WuU.  4:j5;  Kiiiir  v.  Shep- 
herd, 3  Story  .S49;  Uastings  f.  I'epper,  11 
Pick.  41 ;  Gage  v.  Terrell,  9  Allen  '.".)!). 

1  Klliot  r.  Uussell,  10  Johns  ) ;  6  Am. 
Dec.  80G. 

2  Williams  r.  Branson,  1  Slurph.  417; 
^  Am.  Dec.  562;  Gilmore  v.  Carman,  1 
Smedes  &  M.  279;  JO  Am.  Dec.  9i>;  Swin- 
dlers. Uilliard,  2  liich.  281!;  45  Am.  Dec. 
732;  The  Keesidc,  2  Sura.  5i;7;  Crosby  f. 
Filch,  12  Conn.  410;  31  Am.  Dec.  345; 
McClure  v.  Hammond,  1  Bay.  99;  The 
Umma  Johnson,!  Spragne,  527;  Oakey 
f.  Kussell,  18  Mart.  (La.)  58;  I'arker  v. 
Flagg,  26  Mo.  181;  4o  Am.  Dec.  101; 
Thfl  I'ropeller  Commerce.  1  ISlack.  582; 
The  Niagara  r.  Corde.s,21  lIow.2i);  Clark 
V.  Barnwell,  12  iri.  272;  The  Commander- 
in-Chief,  '  Vail.  51 ;  Hastings  v.  I'epper, 
)1  rick.  41-  Citizens'  Bank  v.  Nan. 
tnckct  S.  B.  Co.,  2  Story  Ifi;  Jeucks  v. 
Coleman,  2  Sumner,  221;  -McGregor  r. 
Kilgore,  6  Ohio  358;  27  Am.  Dec.  Itiu; 
Bowman  r.  Hilton,  11  id.  MA;  McArlhur 
r.  Sears,  21  Wend.  I'JO;  Dunseth  v. 
Wade, 2  Scam.  2'i5;  Hart  i:  .Mien,  2  Watts 
114;  Harrington  v.  M'Shane,  id.  443; 
i7  Am.  Dec.  321;  Warden  i-.  Greer,  6  id. 
424;  l'ard.;e  r.  Drew,  25  Wend.  459;  I'or- 
tcrlleld  1'.  Humphreys,  8  Humph.  497; 
Kirtland  v.  Montgomery,  1  Swun  452; 
HoUister  r.  Nowlen,  19  Wend.  2.14;  .32 
Am.  Dec.  45.1;  Cole  v.  Goodwin,  id.  251; 
32  Am.  Dec.  470;  Hale  v.  The  N.  J. 
NaT.  I'o.,  15  Coun.  539;  Jones  v.  I'ltcher, 
3  Stew.  &  r.  13G;  24  Am.  Dec.  710; 
Sprowl  r.  Kellar,  4  id.  382;  Richards  v. 
Hannen,  1  Fed.  Kep.  54. 

U  has  been  laid  down  by  ^ome  author- 
ities that  no  ship  is  u  commo"  carrier 
that  does  not  ply  regularly  on  some 
definite  route  or  between  certain  ter- 
mini as  a  packet,  and  that  a  general 

11 


ship  is  not  a  common  carrier.  Pars,  on 
Shipping,  p.  174.  But  in  a  modern  En- 
gliKh  case  the  question  was  decided  by 
the  Exchequer  Chamber  the  other  way. 
Liver.  Alkali  Co.  v.  John.son,  L.  K.  9  Ex. 
338;  7  Ex.  2i>7.  The  defendant  was  a 
barge  owner  and  let  out  vessels  for  the 
conveyance  of  goods  to  any  customers 
wlio  applied  to  him.  Each  voyage  was 
made  under  a  separate  agreement  and 
a  bargs  was  not  let  to  more  than  one 
person.  T)ie  defendant  did  not  ply  be- 
tween any  flxed  termini,  but  the  cus- 
tomer fixed  in  each  particular  case  the 
points  of  arrival  and  departure;  and  it 
was  held,  aHirming  the  judgment  of  the 
Court  of  tte  Exchequer,  that  the  de- 
fendant had  incurred  tlie  liability  of  a 
common  carrier  and  was  liable  though 
the  goods  were  lost  without  any  fault 
on  his  part. 

3  HolUster  v.  Nowlen,  19  Wend.  234;  32 
Am.  Dec.  455 :  Cole  v.  Goodwin,  19  Wend. 
•251;  32  Am.  Dec.  470;  Clark  r.  Faxton, 
26  Wend.  153;  I'owell  v.  .Myers,  26  Wend. 
591;  Camdc'i,  etc.,  Transp.  Co.  v.  Bel- 
knap, 21  Wend.  3.">4;  Jones  r.  Voorbees, 
10  Ohio  145;  Dwight  i-.  Brewster,  1  I'ick. 
50;  11  Am.  Dec.  133;  Bean  i:  Sturtevant, 
8  N.  H.  146;  28  Am.  Dec.  389;  Beckman  v. 
Shonsc,5  Uawle,  179;  28  Am.  Dec.  653; 
I'owell  V.  Mills,30Mi8S.  231;64  Am.  1'  c. 
158;  Walker  i:  Skipwilh,  Meigs.  502;  33 
Am.  Di'C.  161;  I'ixotti  r.  .McLaughlin,  1 
Strobh.  468;  47  Am.  Dec.  56J;  Henry  r.  U, 
Co.,  4  llarr.  (Del.)  448. 

Bi.t  the  mere  practice  of  the  driver, 
unknown  and  unassented  to  by  the  pro- 
prietor, to  carry  parcels  for  a  compensa- 
tion will  not  render  the  latter  liable. 
Dwight  V.  Brewster,  1  Pick.  50;  11 
Am.  Dec.  133;  Blanchard  v.  Isaacs,  3 
Barb.  388;  Beckman  v,  Shouse,  5  Uawle, 
179;  28  Am.  Dec.  683;  Bean  r.  Sturtevant, 
8  N.  H.  146;  28  Am.  Dec.  389;  Butler  t'. 
Basing,  2  V.  &  V.  613;  Sheldon  v.  Uobin- 
son,  7  N.  II.  157;  26  Am.  Dec.  726. 

145 


§86 


INTKODUCTOKY. 


[PAKT  II. 


rado,  au  irrigating  company  is  a  common  carrier  of 
water.' 

§  85.  Who  are  not  Coiiinioii  Carriers. — But  tlio 
following  arc  not  common  carriers,  nor  subject  to  their 
duties  and  responsibilities:  Carriers  of  passengers;^ 
sleeping  car  companies;"'  telegraph  comi)anies;'  n(»r 
are  warehousemen  and  whai-tingers;''  nor  owners  of 
steamboats  emi)loyed  in  the  business  of  towing;"  nor 
log  driving  and  booming  companies;^  nor  one  who 
keeps  horses  and  carriages  for  hire;^  nor  one  who  con- 
tracts with  the  government  to  carry  its  goods  for  a 
certain  term;"  nor  a  contractor  for  carrying  the  mails.'** 

§  80.  Carriers  of  Live  Animals.— As  the  trans- 
portation of  living  animals  was  unknown  to  ihe  era  of 
tlie  formation  of  the  common  law,  it  has  been  much 
debated  as  to  whether  persons  engaging  in  this  busi- 
ness are  common  carriers  or  not.  Mr.  Justice  Willes  re- 
garded the  question  as  being  probably  one  of  words, 
it  being  much  the  same  thing  to  say  that  carriers  of 
animals  are  not  (omnion  carriers,  and  to  say  that  they 
are  common  carriers,  with  the  modification  that  they 


1  Wheeler  r.  North.  Col.  Irrigiation  Co., 
10  Colo.  582;  .{  Am.  St.  Kep.  CO.S;  17  I'nc. 
Hep.  4H7. 

2  .See  Post  §  216. 

3  See  I'ost  §  ,S24. 
*  See  Post  §317. 

»  Untch  Carr.  02. 

1  The  Supreme  f'onrts  of  LoD'siaiia 
anil  North  Ciirolinu  have  derideit  that 
they  are.  Smith  v.  Pli-rre,  1  \jl.  .141); 
Adams  r.  New  Orleans  Towboat  Co.,  11 
I,a.  4''i;  llussey  v.  Mine.  Val.  Trans.  Co., 
'•'4  l,a.  Ann.lflj;  i;i  Am.  Uep.  120;  Walston 
T.  Myerrt,  6  Jone.s,  174.  The  .Supreme 
('onrta  of  California  and  New  Jersey, 
while  deciding  Ihr  canes  before  them  on 
other Kronnds,  .ir.cl  wairiiiK  tbiH  ((ues- 
tion  uH  unneceMsary  to  the  decision  of 
the  cases,  have  intimated  similar  views. 

140 


White  1.  The  Mary  Ann,  6('al.  462;  6* 
Am.  Dec.  .V2,i ;  AHhmore  r.  Penn.  .Steam 
Tow  Co.,  2W  N.  J.  (Law)  iwt.  The 
Supreme  Courtu  ol  New  York,  Ken- 
tuiky  and  I'ennsylvani.l  hold  the  oppo- 
site doctrine.  Caton  r.  Kumney,  1,1 
Wend.  XH7;  Alexanilcr  r.  Orecne,  .H  Hill, 
it;  Wells  f.  Steam  Nav.  Co.,  2  N.  Y.  204; 
Leonard  v.  Hendrickson,  IHPa.  St.  40; 
li.')  Am.  Dec.  M' ;  Varble  r.  ItiKley,  14 
UuHh.  6'.iH;  29  Am.  Kcp.  4M;  Krowu  r. 
(  li'tTK,  OH  Pa.  St.  51 ;  X  Am.  Kep.  522 ;  Hays 
f.  Millar,  77  Pa.  St.  2:lS;  IS  Am.  Kep.  445. 

'  Mann  iv   White    llivcr  etc.    Co.,   48 
Mich. OH;  41  Ain.Uep.  141;HN.W.Ucp.R50, 

N  HienriBt  f.  Arnot,  10  Mo.  (App.)  I'.t7. 

»  U.S.  r.  Power,  OMon.  271. 

")  Central  It.  A  lla>ik  Co.,  v.  I.amplcy, 
70  Ala.  367;  52  Am.  Uep.  XM  (1884). 


en.  IX.] 


INTRODUCTORY. 


§86 


are  not  liable  for  any  damage  or  loss  growing  out  of 
the  vices  or  propensities  of  the  animals  carried.^  The 
question  is,  however,  very  inipor ta  .  since  it  affects 
that  of  the  burden  of  proof;  and  bee.  ^  je  it  follows  that, 
if  such  carriers  are  not  common  carriers,  they  are  not 
liable  for  any  damage  or  loss  not  occasioned  in  some 
way  by  their  own  want  of  skill  and  care,  tliough  such 
damage  or  loss  may  not  fall  within  any  of  the  excep- 
tions made  by  law  to  the  liabilities  of  common  carriers. 
In  England,  carriers  of  living  animals  are  not  consid- 
ered as  common  carriers,-  au«^'  *^his  vr.  the  view  taken  in 
several  of  the  States.'^  But  in  ii.'>jt  of  the  States,  car- 
riers of  living  animals  are  held  to  be  common  carriers, 
and  to  be  insurers  to  the  same  extent  as  if  engaged  in 
carrying  general  merchandise,  subject  to  the  exception 
of  any  loss  or  damage  caused  by  the  animals  to  them- 
selves or  to  each  other.* 


1 1 


1  Great  Western  U.  Co.  v.  Blower,  20 

W.  I!.  7T«(1H7-.'). 

•-'  .VcMiinus  f.  U.  Co., 2  H.  &  N.  6113;  Mc- 
Haiiii^  i:  \i.  <'.).,  4  II.  *  N.  328;  Can-  v.  U. 
Co.,  7  Exch.  712;  I'lilmor  c.  K.  Co..  4  M.  & 
\V.  74:1 ;  I'iiriliiitftoiif.  K.  ('o.,,SS  Kug.  Law 
A  Kcj.  Ui'p.  432;  Kuiulall  i\  London  R.  Co. 
L.  H.  7  i;x.  373  (1H72). 

1  Keiitufky—lAnii^yiWc  etc.  R.  Co.  v. 
IIiMlpi-,  it  Itiisli  645;  16  Am.  Rep.  740; 
Hall  r.  UcMfio.  3  Mot.  (Ky.)  fit.  Louis- 
ianfi— I'itic  V.  offutt,  21  f.a.  Ann.  67'J; 
WAiii.  Dfc.  74<.t.  il/icAii/nn-l-ake  Short! 
R.  Co.  r.  IVrkiiw,  a.'i  Mich.  32!t;  12  Am. 
Ri'p.  27."(;  .Micliiifan  ftc.  R.  Co.  i:  McDon- 
oii^'h,  n  .Mirh.  Wt;  4  Am.  Rep.  460.  T"*;!- 
neisft-  HakiT  r.  1{.  Co.,  10  I.i'a  364. 

4  ij.Miballr.  R.  Co.,  26Vt.  247;  62  Am. 
Dec.  5«7;  Ak"<'w  f.  The  Contra  CosUi, 
57  C'Hl.  42ft;  87  Am.  Dec.  87;  Atchi 
son  etc.  R.  Co.  r.  Wasl.burn,  (>  Nob.  117; 
Kansa-i  otc.  R.  Co.  r.  RoynoMs,  8  K;is. 
623;  Kansas  etc.  R.  Co.  r.  Nioholls,  "J  Kiis. 
2;{ft;  12  Am.  Rop.  4.14;  liltz  r.  R.  Co.,  3 
I'hila.  S2;  Cra^riu  r.  R.  Co.,  ftl  N.  V.  til; 
10  Am.  Rop.  r.r.l);  I'cnn  1:  H.  Co.,  49  N. 
T.  104;  .MynarU  v.  R.  Co.,  71  N.  Y.  180; 


».  c,  7  Hnn,  .S90;  27  Am.  Rep.  28;  German 
r.R.  Co.,  38  Iowa  127;  McCoy  f.  11.  Co., 
44  Iowa,  424;  Wilson  i:  Hamilton,  4 
Ohio  St.  722  ;  Wolsli  r.  R.  Co.,  10  Ohio  St. 
65;  St.  I.oiiis  etc.  R.  Co.  r.  Dorman,  72  III. 
504;  South  Alabama  etc.  R.  Co.  v.  Hen- 
loin,  52  Ala.  Gim ;  23  Am.  Rep.  578-  Ri.xtortl 
V.  Smith,  B2N.  II,  355;  13  Am  ."op.  42; 
Clarke  c.  R.  Co.,  14  N.  Y.  750;  <.J  Am. 
Dec.  205;  Ohio  oto.  R.  Co.  i'.  Dnnbar,  20 
111.  62;t;  Smith  v.  R.  Co.,  12  Alien,  .531; 
Kvans  i'.  R.  Co.,  Ill  Mass.  142;  ConKor 
f.  R.  Co.,6Dner,  375;  Harris  v.  R.  Co., 
20  N.  Y.  232;  Powell  r.  R.  Co.,  32  I'a.  St. 
414;  KastTonnossoeotc.  R.  Co.  f.  Whittle, 
27  (ia.  535;  73  Am.  Doc.  741';  Ayres 
r.  R.  R.  Co.,71  Wis.  ,372;  5  Am.  St.  Rop. 
226;  37  N.  \V.  Rep.  432;  .Mason  v.  U.  Co., 
25  Mo.  App.  473;  (Chicago  etc.  R.  Co.  f. 
Harmon,  12  111.  App.  54;  Mo.  I'ac.  R.  Co. 
v.  Harris,  67  Tox.  KiC;  2  S.  W.  R.  p.  574; 
I.indsloy  f.  R.  Co.,  36  Minn.  B3<.t;  I  Am. 
St.  Kop.  6',t2;  33  N.  W.  R.p.  7;  (inlf  etc. 
R.  Co.  V.  Truwick,  6H  Tox.  314;  4  S.  W. 
Rep.  567;  2  Am.  St.  Rep.  494;  Rambcrg 
V.  U.  Ct>.,  9  8.  C.  61;  30  Am.  Rep. 
13;    Mich.  Cent.    R.    Co.    v.    Myrick,    1 

147 


§87 


INTRODUCTORY. 


[part  II. 


§87.  Divisions  of  tlie  Subject. — Having  ascer- 
tained wlio  is  a  common  carrier,  we  sliall  consider  the 
law  relating  thereto  in  four  chapters,  in  the  order  in 
which  his  duties  arise  when  he  undertakes  to  prosecute 
his  public  calling,  /.  c:  I.  The  Duty  to  Keceive  Goods 
Tendered  to  Him  (Chap.  X.);  II.  His  Kesponsibility 
While  They  are  in  His  Possession  (Chap.  XI.);  III.  The 
Modification  of  th  it  Duty  by  Agreement  (Chap.  XII.); 
IV.    The  Duty  to  ite-deliver  the  Goods  (Chap.  XIII.). 


Snp.  Ct.  Kcp.  425  (U.  S.  Slip.  Ct.) ;  lirown 
f.  U.  Co.,  IS  llo.  (App.)  5ii9;  .*<[.  Loui.s 
etc.  U.  Co.  r.  Lc'ssir,  4'.  Ark.  2:!fi;  III. 
CL-nt.  R.  Co.  r.  lirilsfonl,  13  111.  (App.) 
251;  Chicago  etc.  U.  Co.  ;•.  Ilnrmon,  12 
111.  (App.)  oi;  Wabii^h  i-lc.  li.  K.  Co.  r. 

148 


McCasland,  11  111.  (.'.pp.)  491 ;  Iiul.  etc 
H.  Co.  i:  Juri-y,  8  111.  (Apj).)  IGO;  Chicago 
etc.  K.  Co.  r.  Owen,  21  111.  (Ai)p.)  3.S9; 
Kiunick  r.  K.  Co.,  Gi)  Iowa  6iiS;  29  N.  W. 
Uep.  772;  Itakcr  c.  U.  Co.,  10  I.ca,  304; 
I'ortcrlk'kl  r.  Iluiiiphrcy!?,  8  Huuiph.  497. 


ii 


CHAPTER  X. 

THE   DUTY   TO   RECEIVE. 

Section  88.  Common    Carrier    Subject    to    Legislative    Control   and 
Regulation. 

89.  Must  Carry  for  all  Persons. 

90.  Must  Carry  for  Reasonable  Compensation. 

91.  Must  Carry  for  all  under  same  Conditions. 

92.  Discrimination  in  Charges. 

93.  Exceptions  to  Rule  that  Common  Carrier  must  Carry  for  all. 

94.  Where  Payment  of  Charges  Refused. 

96.  Where  Service  Demanded  Outside  his  Profession. 

96.  Where  Goods  Illconditioned  or  Suspicious. 

97.  Where  he  has  Insufficient  Room. 

98.  Carriage  must  be  for  Hire. 

99.  Carriage  beyond  Carrier's  Route. 

100.  Carrier's  Power  to  Carr,'  Beyond  liis  Route. 

101.  Not  Bound  to  do  so. 

102.  Effect  of  Agreement  Not  to  Carry  Beyonil  ICoulf. 

103.  Proof  of  Agreement  to  Carry  Beyond  Route. 

104.  Actual  Delivery  to  Connecting  Carrier  Required. 

105.  Aliter  as  Between  tlie  Carriers  Tliemselvcs. 

106.  Receipt  of  Goods  niarl<ed  to  I'ltue  Beyond  Houlo. — The 

Englisli  Rule. 

107.  Tlie  American  Rule, 

108.  Right    of    Connecting    Ciirriors  to   Kxemptions    in  First 

Contract. 
lOi).     Power    of    First    Carrier    to    Contract    with   Tonnecting 

Carriers, 
no.     Otlier  Rigiits  ami  Lial)ilitics  of  Cnmu'ftiiig  Carriers. 
111.     Presumption  as  to  Time  of  Damagi;. 

§  88.  Common  Carrier  Subject  to  Legislative  Con- 
trol and  Regulation.— The  duties  of  the  common  car- 
rier are  public  duties,  aud  he  is  subject  to  public  regu- 
lation and  control.'     The  State  has  power  to  forbid 


\ 


0 

y 


1  Peck  p.  R.  R.  Co.,  94  U.  S.  164;  Chi- 
cago etc.  R.  Co.  V.  Ackley,  94  U.  S.  179 ; 


Winona  etc  R.  Co.  v.  Blake,  94  U.  8. 
180 ;  Thnrman  v.  Wells,  18  Barb.  600. 

149 


§88 


THE   DUTY    TO    KECP:iVE. 


[PAKT  II. 


discriminations  in  the  carriage  of  goods  or  passen- 
gers;' and  to  regiil'.ile  the  carrier's  charges,  provided 
that  such  regulations  do  not  impair  any  con- 
tract right  which  the  carrier  has  acquired  by  his  diar- 
ter,^  and  provided  that  under  the  pretense  of  reguhi- 
tion  the  State  does  not  re(iuire  the  carrier  to  carry  per- 
sons or  property  Avithout  reward,  or  at  such  a  rate  as  to 
make  the  carrying  business  a  losing,  instead  of  a  rea- 
sonably profitable  calling.^  Tlw  State  legislature  (as 
to  the  carrier's  business  from  place  to  place  within  the 
limits  of  the  State),  the  Federal  Congress  (as  to  inter- 
state carriage),  may  regulate  the  charges  of  common 
carriers,  either  by  a  statute  prescribing  the  legal 
charges,  or  through  a  commission  created  by  it.^  The 
right,  however,  of  the  courts  to  inquire  into  the  reason- 
ableness of  the  rates  established  by  the  legislature  or 
its  agents,  cannot  be  taken  away  by  the  State  or  Gov- 
ernment.^ 

The  State  or  Government  may  also,  under  its  police 
power,  for  the  protection  of  the  life,  limb  and  property 
of  the  citizen  anu  the  welfare  of  the  public,  regulate 
the  mode  of  conducting  the  business  of  the  carrier,  and 


5 


1  Chicago  e»c.  R.  Co.  v.  People,  67  111.  11 ; 
16  Am.  Uep.  597 ;  Be  Cuir  v.  Benson,  27 
La.  Am.  1. 

2  Cooley  Const.  L.  311. 

a  Stoneji'.  Farmers'  etc.  Co.,  116  U.  8. 307 ; 
6  S.  C.  Hep.  334, 1191.  "To  lake  an  extreme 
case,  if  the  interests  of  the  carrier  and 
shipper  in  respect  to  rates  are  irrecon- 
cilable, that  is,  it  the  highest  rate  which 
the  shipper  can  afford  to  pay  will  not 
recompense  the  carrier  for  cost  ot  serv- 
ice, the  carrier  clearly  could  not  be 
compelled  to  carry,  tor  that  would  be 
taking  private  property  for  private 
uses,  or  at  any  rate  for  pnblio  nses, 
without  just  compensation,  as  well  as 
an  infraction  ot  certain  other  constitu- 
tional provisions.  So  that  the  carrier  is 
at  least  entitled  to  charge  a  rate  which 


will  pay  the  cost  of  service.  This  prop- 
osition would  seem  to  be  elementary 
under  the  constitntional  gnarantees  of 
our  form  ot  government.  Itut  it  is  nec- 
essary to  allude  to  it  on  account  of  the 
feeling  that  exists  in  some  sections  of 
the  country  that  railroads  are,  or  should 
be,  compelled  to  carry  at  such  a  rate  as 
will  enable  the  shipper  to  prosper 
thoagh  it  rnin  the  carrier.  The  power 
to  re;(iilate  does  not  mean  the  power  *n 
destroy."    Alb.  L.  J.  vol.  48  p.    r>'i. 

4  Chicago  etc.  R.  Co.  r.  Minnesota,  134 
U.  S.  418;  10  S.  C.  Rep.  462,  702.  At  least 
half  of  llio  Slates  have  established  com- 
missions ot  this  kind.  Sec  2  Stim.  Am. 
St.  L.  §  8570. 

s  (Chicago  etc.  I'..  Co.  r.  Minnesota, 
supra. 


CII.  X.] 


THE   DUTY    TO    KECEIVE. 


§89 


against  t.ucli  power,  the  carrier's  previous  contract 
rights  under  his  charter,  are  of  no  avail,  as  it  is  well 
settled  that  the  right  of  the  legislature  to  exercise  its 
police  power,  cannot  be  alienated,  surrendered  or 
abridged  by  any  grant,  contract  or  delegation  by  any 
former  legislature.'  Nevertheless,  whether  or  not  the 
exercise  of  the  i)ower  in  the  particular  case  is  proper, 
is  subject  to  the  examination  and  decision  of  the 
courts." 

§  89.  Must  Carry  for  all  Persons. — A  common 
carrier  is  bound  to  carry.  A  man  is  free  from  any 
duty  to  carry  another  man's  goods  until  he  has  entered 
into  a  special  agreement  to  do  so,  but  a  common  car- 
rier, by  the  very  fact  of  holding  himself  out  as  such, 
has  on  his  side  made  an  offer  to  all  the  public  to  carry 
their  goods,  which  becomes  at  once  a  complete  and 
binding  contract  when  any  person  brings  him  his  goods, 
and  makes  the  request  that  he  shall  carry  them  to  a 
certain  other  person  or  place."  For  a  refusal  to  carry, 
lie  is  liable  to  an  action  at  law,  at  the  suit  of  the  per- 
son whose  goods  have  been  refused;^  aud  he  may  like- 


1 1.awson  Rights,  Rem.  &  Pr.  §  30()T ; 
People  V.  Squirt),  107  N.  Y.  593;  14  N.  K. 
Utp.  820;  Railroad  Co.  r.  Fuller,  17  Wall. 
DiJO;  Slate  r.  R.  Co.,  32  Fed.  Rep.  722; 
N.nshvilleetc.  R.Co.  r.  State, S3  Ala.  71 ;  3 
South.  Rep.  702;  12H  U.  S.  %;  9  S.  C.  Rep. 
2S;  Fitchburg  etc.  R.  Co.  v.  R.  Co.  1 
Allen  .552;  Pitts,  etc.  R.  Co.  v.  Brown,  67 
Inil.  4,');. 33  Am.  Rep.  73. 

a  III.  People  r.  Gillson,  109  N.  Y.  389,  4 
Am.  .«t.  Rep.  4G5;  17  N.  E.  Rep.  34.3. 

3  Hrowne  Carr.  §  40 ;  .Moses  r.  R.  Co.,  24 
N.  U.  71;McUulIce  r.  R.  Co.,  .Vi  N.  II. 
4.30;  13  Am.  Rep.  72;  Peoria  etc.  R,  Co.  r. 
R.Co.,  109  111.  135;  50  Am.  Rep.  605;  Chi- 
cago A  R.  Co.  V.  R.  Co.,  34  Fed.  Rep.  481 ; 
Chicago  etc.  R.  Co.  r.  Erickson,  91  III. 
613;  .33  Am.  Kep.  70.  The  Htatement 
of    the    Huperintendent  of  a  railroad 


that  they  would  carry  no  more  coal 
for  the  |>laintitf  docs  not,  in  the  ab- 
sence of  an  actual  tender  of  coal 
for  carriage,  amount  to  a  refusal  to 
carry  so  as  to  make  the  carrier  liable  to 
an  action.  Wilder  v.  R.  Co.,  30  Atl.  Rep. 
41  (Vt.) 

4  Story  on  Bailments,  §  608;  Doty  v. 
Strong,  1  Pinn.  313;  40  Am.  Dec.  773; 
Maybin  v.  R.  Co.,  8  Rich.  240;  64  Am. 
Dec.  753;  Wheeler  f.  R.  Co.,  31  Cal.  46; 
89  Am.  Dec.  147;  Ayres  r.  R.  Co. ,71  Wis. 
372;  37  N.  W.  Rep.  432.  Where  the 
carrier  refusea  out  of  ill  will  or 
through  a,  willful  disregard  of  the 
person'^  righta  exemplary  damages 
may  be  given.  Avinger  i'.  R.  Co  ,  7  S. 
K.  Rep.  493  (B.C.) 

151 


0 


'i 


4 

r 

Mi 

0 


m 

m 


'.-.< 


V  I 


§91 


THE   DUTY   TO   RECEIVE. 


[part  II. 


wise  be  proceeded  against  by  the  extraordinary  writs 
of  injunction  and  mandamus.' 

§  90.  Must  Carry  for  a  Reasonable  Compensar 
tion.  —  Although  as  we  shall  see,^  a  carrier  is  permit- 
ted to  grade  his  charges  according  to  the  value  of  the 
goods  and  the  risk  he  runs,  he  is  not  at  liberty  to  charge 
whatever  he  pleases.  His  charges  must  be  reasonable, 
and  anything  like  extortion  on  his  part  will  be 
promptly  checked  by  the  courts,^  either  by  an  injunc- 
tion or  by  actions  to  recover  back  the  unreasonable 
charges.* 

§  91.  Must  Carry  for  all  under  the  Same  Con- 
ditions.—  lie  must  carry  for  all  alike,  and  cannot  ex- 
tend i'acilities  and  accommodations  to  one  man  and  re- 
fuse them  to  another,"  for  it  is  clear  that  the  denial 
of  the  entire  right  of  service  by  a  refusal  to  carry,  dif- 


iMcDnffeer.  K.  Co.,5i  N.  H.  430;  18 
Am.  Uep.  72,  the  Court  saying:  "There 
might  be  cases  where  the  remedy  by 
civil  BDit  for  damages  at  common  law 
wonid  bo  practically  ineffectual  on  ac- 
count of  the  difficulty  of  proving  large 
damages,  or  the  incompetence  of  a  mul- 
tiplicity of  such  suits  to  abate  a  contin- 
ued grievance,  or  tor  other  reasons. 
In  such  cases  there  would  be  a  plain 
and  adequate  remedy,  where  there 
ought  to  bo  one,  by  the  re -enforcing 
oporntion  of  an  injunction,  or  by  indict- 
ment, information,  or  other  common, 
familiar  nnd  appropriate  course  of  law." 
SUte  V.  U.  Co.,  48  N.  J.  (L.)  65;  S7  Am. 
Rep.  643 ;  People  v.  R.  Co.,  28  Han.  543 ; 
Chicago  etc.  U.  Co.  v.  People, 66  III.  365;  8 
Am.  Rep.  690;  People  v.  R.  Co.,  66  111. 
95;  8  Am.  Rep.  631;  Sanford  v.  R.  Co., 
24  Pa.  8t.  378;  64  Am.  Dec.  667;  Menacho 
V.  Ward,  27  Fed.  Rep.  529.  At  com- 
mon law  a  common  carrier  may  be 
indicted  for  breach  of  bis  common 
law  duty  on  the  same  principle  that  an 

152 


innkeeper  may  be  indicted  for  refusing 
to  receive  a  guest.  Pozti  v.  Shipton,  1 
P.  St  D.  12;  R.  V.  Ivens.  7  C.  A  P.  213;  4 
Black.  Com.  167. 

2  Post  §  143. 

3  Harris  v.  Packwood,  8  Taunt.  264; 
Wallace  t>.  Matthews,  39  Oa.  617;  Hoi- 
ford  V.  Adams,  2  Dner  471;  Three  Hun- 
dred and  Eighteen  Tons  of  Coal,  14 
Hlatcbf.  4S3;  Chamblls  v.  R.  Co.,4  Brewst. 
563. 

.  *  Menacho  v.  Ward,  27  Fed.  Rep.  629; 
Peters  t>.  K.  Co.,  42  Ohio  St.  275;  61  Am. 
Rep.  814;  Oook  v.  R.  Co.,  46  N.  W.  Rep. 
1080  (la.) 

s  McDuffee  V.  R.  Co.,  62  N.  H.  430;  13 
Am.  Rep.  72;  New  England  Ex.  Co.  v.  R. 
Co.,  S7  Me.  188;  2  Am.  Rep.  31;  Sanford 
V.  R.  Co.,  24  Pa.  St.  378;  64  Am.  Dec.  667; 
Messenger  V.  R.  Co.,  36  N.J.  L.  407;  13 
Am.  Rep.  457 ;  37  N.  J.  L.  631 ;  18  Am.  Rep. 
755;  Cumberland  Valley  R.Co.'a  Appeal, 
62  Pa.  St.  230;  Michigan  etc.  R.  Co.  v.  Mc- 
Donough,  21  Mich.  166;  4  Am.  Rep.  466. 


•-*. — i  M  9  t 


OH.  X.] 


THE   DUTY   TO    RECEIVE. 


§92 


fers  in  degree  only,  and  not  in  the  essential  legal  char- 
acter of  the  act,  from  the  denial  of  the  right  in  part 
by  an  unreasonable  discrimination  in  facilities,  or  ac- 
commodations. He  is  not  allowed  to  show  favors,  or 
make  distinctions  which  will  give  one  employer  an 
advantage  over  another  "either  in  the  time  or  order  of 
shipment,  or  in  the  distance  of  the  carriage,  or  in  the 
conveniences  or  accommodations  which  may  be  af- 
forded."* A  railroad  must  not  delay  or  stop  the  trans- 
portation of  the  property  of  one  shipper  in  order  to  give 

that  of  another  a  preference.^ 

§  92.  Discrimination  in  Charges. — But  in  the  mat- 
ter of  his  charge  for  the  service,  the  common  law  did 
not  require  the  carrier  to  treat  every  man  with  absolute 
equality.  lie  could  charge  A  less  than  a  fair  compen- 
sation, or  carry  for  A  free  of  charge,  provided  he  did 
not  charge  B  more  than  a  fair  compensation.  This 
was  certainly  the  English  rule  prior  to  the  passage  of 
a  statute  prohibiting  discrimination  in  rates  by  rail- 
road and  canal  companies."'  And  the  same  view  of 
the  common  law  is  taken  by  the  American  Courts  and 
text  writers.*     A  reasonable  price  paid  by  B  is  not 


1  Hatch.  Carr.  §  J97. 

2  Keeney  r.  K.  Co.,  59  Barb.  104;  Great 
West.  R.  Co.  V.  Burns,  60  111.  284;  Gale- 
na etc.  R.  Co.  V.  Rae,  18  111.  488;  68  Am. 
Dec.  674;  Dixon  v.VL.  Co.,  64  la.  531;  52 
Am.  Rep.  460;  21  N.  W.  Rep.  17;  Frazier 
f.  R.  Co.,  48  la.  571. 

3  17  and  18  Vic.  c  31  (1845).  The  Eng- 
lish writer*  and  jadgcs  nniformly  de- 
clare that  the  object  of  this  statnto  was 
to  pat  an  end  to  the  practice  of  dig- 
crimination  in  rates  then  indulged  in 
withoDt  restraint.  See  Browne  Carr. 
J  307.  In  Baxendale  v.  R.  Co.,  4  C.  B. 
(K.  S.)  76,  Byles,  J.,  said:  "I  know  no 
common-law  reason  why  a  carrier  may 
not  charge  less  than  what  is  roasonable 
to  one  person,  or  even  carry  him  tree  of 


all  charge."  In  Great  West.  R.  Co.  i-. 
Sutton,  38  L.  J.  (Ex.)  184;  L.  R.  4  H.  L. 
238,  Blackburn,  J.,  said:  "There  was 
nothing  in  the  common  law  to  hinder  a 
carrier  from  carrying  for  favored  indi- 
vidnalB  at  an  unreasonably  low  rate,  or 
even  gratis.  All  that  the  law  required 
was  that  he  should  not  charge  any  more 
than  was  reasonable." 

4  Menacho  v.  Ward,  27  Fed.  Rep.  629 ; 
Johnson  t'.  R.  Co.  16  Fla.  623;  26  Am. 
Rep.  731;  Ragan  v.  Aiken,  9  Lea.  609;  42 
Am.  Rep.  684  ;  Fitchburg  R.  Co.  v.  Sage, 
12  Gray  393 ;  Cowden  tr.  Pacific  Coast  S. 
S.  Co.  29  Pac.  Rep.  873  (Cal.);  ex  parte 
Benson,  18  S.  C.  38;  44  Am.  Rep.  664;  see 
Story  Bail.  §  608,  note;  Wood  Ry.  Law 
§   197.    In   some    States    it   has    been 

153 


f  I 


§93 


TFIK    Dt'TY   TO    UKCEIVK, 


[part  II. 


made  unreasonable  by  a  loss  price  being  paid  by  A. 
As  put  by  Croniptou,  J.,  in  an  English  case,  "The  charg- 
ing another  party  too  little  is  not  charging  you  too 
much."'  Whether  the  carrier  charges  another  more 
or  less  than  the  price  charged  a  particular  individual, 
may,  however,  be  a  matter  of  evidence  in  determin- 
ing whether  a  charge  is  too  much  or  too  little  for 
the  service  performed,  and  is  or  is  not  reasonable.- 
And  where  the  discrimination  is  made  to  the  obvious 
detriment  of  t'he  shipper  or  the  public,-'  then  it  is  not 
reasonable,  and  even  at  common  law,  it  is  unlawful. 


wrongly  axsnmcd  in  passing  on  gtattitps 
forliidiiing  unjust  (liMcnuiiiiation  by 
common  carriers  tliut  thcMO  Flatutcs 
are  only  declaratory  of  the  common  law. 
Messenger  v.  U.  (!o.  m  N.  j.  (I,.)  407;  13 
Am.  Uep. ;  SchoUeld  v.  U.  Co.  43  UUio  St. 
371;  54  Am.  Rep.  846. 

1  Garten  v.  K.  Co.,  l  B.  &  S.  112. 

2  Johnson  v.  U.  Co.  supra;  Menacbo 
V.  \\i\ri\,mpra;  Kelly  r.  U.  Co.,  61  X.W. 
Rep.  O.y)  (la).  "  I  think  it  appears  from 
the  preamble  of  the  'JOth  section  of  the 
Railways  Clan.ses  ConBoliilation  Act 
(184.'))  that  the  legislature  was  of  opinion 
that  the  changed  state  of  things  arising 
from  the  general  use  of  railways  made 
it  expedient  to  impose  an  obligation  on 
railway  companies  acting  as  carriers 
beyonil  what  is  imposed  on  a  carrier  at 
common  law.  And,  it  this  be  borne  in 
min<l,  I  think  the  constraction  of  the 
proviso  for  e(|uality  is  clear,  and  is  that 
the  defendants  may,  subject  to  the 
limitations  in  their  special  acts,  charge 
what  they  think  lit,  bat  not  more  to  one 
person  than  thiy,  during  the  same  time, 
charge  to  others  under  the  same  circum- 
stances. And  I  think  it  follows  from 
this  that  if  the  defendants  do  charge 
more  to  one  person  than  they,  during 
the  same  time,  charge  to  others,  the 
charge  is,  by  virtue  of  the  statute,  ex- 
tortionate. And  I  think  the  rights  and 
remedies  of  a  person  made  to  pay  a 
charge  beyond  the  limit  of  equality  im- 
posed by  the  statute  on  railway  com- 

154 


panics,  acting  as  carriers,  on  their  line, 
must  be  precisely  the  same  as  those  of  a 
person  made  to  pay  a  charge  beyond  the 
Innit  imposed  by  the  comnion  law  on 
ordinary  carriers  as  being  more  than 
was  reasonable.  Tie  mode  of  estab- 
lishing that  the  demand  is  extortionate 
differs  in  the  two  casca.  Where  it  is 
sought  to  prove  that  the  charge  is  nn- 
reasouable,  and  therefore  extortionate, 
the  fact  that  another  was  charged  less 
is  only  material  as  evidence  for  the  jury 
tending  to  prove  that  the  reasonable 
charge  was  the  smaller  one.  When  it  is 
sought  to  show  that  the  charge  is  extor- 
tionate, as  being  contrary  to  the  statna- 
bio  obligation  to  charge  equally,  it  is 
immaterial  whether  the  charge  is  rea- 
sonable or  not ;  it  is  enough  to  show  that 
the  company  carried  for  some  other 
person  or  class  of  perrtons  at  a  lower 
charge  during  the  period  throngbont 
which  the  party  complaining  was 
charged  more  under  the  like  circum- 
stances."  Blackburn,.!,  in  Ureat  West. 
R.  Co.  V.  Sutton,  L.  R.  4,  H.  L.  238. 

3  Uays  V.  R.  (>.,  12  Fed.  Rep.  309;  St. 
Louis  etc.  R.  Co.  r.  Jlill,  4  111.  (App.)  879; 
Ragan  r.  Aiken,  tupru;  Houston  etc.  B. 
Co.  r.  Rust,  68  Tex.  98;  Hersh  f.  R.  Co., 
74  I'a.  St.  181 ;  Chicago  etc  R.  I'o.  v.  Peo- 
ple, 67  III.  11;  Burlington  etc.  R.  Co.©. 
Knel  Co.,3I  Fed.  Rep.  6.'i2;  Concord  etc. 
K.  Co.  f.  Forsaith,  B9  N.  11.  122;  47  Am. 
Rep.  181 ;  Shipper  v.  R.  <  o.,  47  I'tt.  St.  338; 
Samuels  v.  R.  Co.,  31  Fed.  Rep.  67. 


Jmmi 


il 


(.'II.  X.] 


THK    1)1  TY     I'O    irKCKIVK 


§92 


Thus  in  Mrnacho  v.  llVz/v/'  a  carrior  by  water  botwoon 
New  York  and  Cuba  (•liai'g;e(l  tlie  plaintiff  a  hi{j;lier 
rate  of  fi'ei};lit  for  transporting  goods  than  he 
eharged  other  shii)per8,  because  the  plaintiff  would 
not  agree  to  employ  that  line  fxclusively.  ll  was  held, 
that  the  diseriniination  was  unlawful,  and  would  be 
enjoined.  "The  obligati()n  <(f  a  carrier,"  saiil  Wallace, 
J.,  "is  to  charge  no  more  than  a  fair  return  in  each  par- 
ticular transaction,  and,  except  as  thus  restricted,  he  is 
free  to  dis<  riminate  at  pleasure.  *  *  *  The  vice  of  the 
discrinnnation  here  is  that  it  is  calculated  to  coerce 
all  those  wiio  have  occasion  to  employ  common  car- 
rier's between  \ew  York  and  Cuba,  from  employing 
such  agencies  as  may  offer.  Its  tendency  is  to  dei)rive 
the  public  of  their  legitimate  opportunities  to  obtain 
carriage  on  the  best  terms  they  can.  If  it  is  tolerated, 
it  will  result  practically  in  giving  the  defendants  a 
monopoly  of  the  carrying  trade  between  those  places. 
Manifestly  it  is  enforced  by  the  defendants  in  order  to 
discourage  all  others  from  attempting  to  serve  the  pub- 
lic as  <arriei's  between  those  places.  Such  discrimina- 
tion is  not  only  unreasonable,  but  it  is  odious." 
So  in  Ohio  a  discrimination  was  ruled  to  be  illegal 
where  its  t(>ndency  was  to  create  a  monopoly  by  exclud- 
ing from  their  proper  markets  the  products  of  the  com- 
petitors of  the  favored  shipper.- 

Fully  one-half  of  the  States,  as  well  as  the  Federal 
Cfovernment  in  the  Inter-State  Commerce  act,  have  fol- 
lowed the  English  legislation  requiring  equality  of 
rates,  and  the  common  law  rules  on  this  subject  are 
greatly  nnxlilied  by  these  statutes.'' 


•  27  Fed.  Kcp.  (,2'.\. 

«  Statt!  V.  \i.  Co.,  2;t  N.  K.  Ui-p.  928. 


•1  Knr  till"  provisions  of  tlic  statntos  see 
Stim.  Am.  St.  L.,  Ait.  HXi. 

155 


■ii! 


§95 


THE   DUTY   TO   UECEIVE. 


[part  II. 


§  93.  Exceptions  to  Rule  that  Common  Carrier 
Must  Carry  for  All.— The  general  rule  laid  down  in 
section  89,  that  the  carrier  must  carry  for  all,  is 
necessarily  subject  to  a  number  of  exceptions,  for  it 
will  be  found  that  he  is  not  bound  to  carry  in  the  fol- 
lowing four  cases: 

§  94.    Where  I'aynient  of  Charges  are  Refused. 

— The  common  carrier  of  goods  has  a  right  to  demand 
payment  for  his  services  in  advance,  and  nmy  refuse  to 
carry  property  placed  in  his  hands  until  his  charges 
are  paid.'  It  is  not  necessary  that  a  specific  sum  of 
money  should  be  promised  or  agreed  upon;  but  where 
that  is  not  the  case,  there  is  an  implied  undertaking 
upon  the  part  of  the  carrier  that  his  charges  shall  be 
reasonable.-  Tn  omitting  to  demand  the  charges  in 
advance,  a  carrier  becomes  bound  to  transport  accord- 
ing t.>  his  custom.''  Where  a  carrier,  after  inform- 
ing the  owner  of  goods  delivered  to  him  for  trans- 
portation that  they  will  be  held  at  the  place  of  receipt 
until  the  freight  charges  are  prepaid,  ships  the  goods 
without  payment,  and  without  notice  to  the  owner,  he 
is  liable  for  damages  resulting  from  such  premature 
shipment.* 

§  95.  Where  Service  Demanded  Outside  His 
Profession. — As  it  is  allowable  for  a  carrier  to  go  into 
the  business  of  carrying  one  kind  of  goods  and  not  an- 


1  Fitch  r.  Xcwborry,  1  Dong.  1 ;  40  Am. 
Doc.  83;  Stewart  v.  Bremer,  6.1  Pa.  St. 
368. 

2  Citizens'  ni.  v.  Nantucket  Steam.  Co., 
2  Story,  16. 

S  (iiilcna  etc.  R.  Co.  f.  Rne,  18  111.  488; 
68  A.  n.  574.  In  an  action  aKiilnst  the 
carrier  for  refusing  to  curry,  a  t<'n(ler  of 
the  money  for  the  freight  need  not  be 
averred;  a  readiness  to  piiy  is  fnfUcient. 
Bastard  r.  Bastard,  3  Show.  81 ;  rickford 

156 


V.  U.  Co..  8  M.  A  \V.  372,  Baron  Parke 
saying  that,  "wheneviT  a  duty  is  cast 
upon  n  party  in  consequence  of  a  con- 
temporaneous act  of  payment  to  be  done 
by  another,  it  is  sufficient  if  the  latter 
pay  or  be  ready  to  pay  the  money  <;'hen 
the  other  is  ri'ady  to  undertake  tlie  duty. 
The  money  is  not  required  to  bo  paid 
down  until  the  carrier  receives  tbe  goods 
which  he  Is  bound  f.."'  carry."  • 

4  Campion  v.  R.  Co.  43  Fed.  Rep.  775. 


.Mm 


CJI.  X.] 


TIIK   DUTY   TO   KECEIVE. 


§05 


other,  or  to  one  place  and  not  to  all  places,  be  nuiy  re- 
fuse to  carry  goods  of  a  different  kind  from  those  which 
he  professes  to  carry,  and  lie  may  refuse  to  carry  (o  a 
different  pla«c  tluiK  that  to  which  he  is  accustomed  to 
carry.'  Thus,  one  iiolding  himself  out  as  a  <arrier  of 
small  parcels  from  A  to  B,  may  refuse  to  carry  a  large 
boiler,  a  (juantity  (►f  pig  iron,  or  the  like,  from  A  to  15, 
or  a  small  ])arcel  from  A  to  C-  A  clause  in  the 
charter  of  a  railroad,  r«»quiring  it  to  transport 
"merchandise  and  other  pro])erty,"  does  not  oblige 
it  to  become  a  common  carrier  of  money."  The 
representations  which  the  carrier  has  made  to  the 
public  are  the  projxM'  guide  to  decide  as  to  the  scope 
and  nature  of  his  business.  He  must  receive  such 
goods  as  his  cliarter  re(pilres  him,  or  as  he  has  held 
himself  out  as  ready  to  receive,^  either  by  express  state- 
ments, or  by  his  former  couise  of  dealing.''  In  the  case 
of  ships,  steamboats,  rallroa<ls  and  other  well-known 
classes  of  carriers,  the  courts  will  take  judicial  notice 
of  the  fact  that  they  are  c«>mmon  carriers  of  certain 
large  classes  of  g(»ods,  and  no  proof  of  this  fact  will 
be  required."  If,  being  carriers  within  a  State, 
they  are  bound  to  take  the  goods  offei-ed  to 
them    to    be    carried    within    the    State,    it    follows, 


1  Pillock  f.  Wells,  109  Masa.  452. 

a  I'ltlock  V.  Wulls,  1U9  Mass.  «,Vi. 

»  KuliT  V.  U.  Co.,  1  Uiss.  35:  SoWRll  r. 
Allen,  G  Wcml.  Hill;  Citizens  Dk.  r.  Nan- 
Incket  8.  15.  Co.,'i  Story  3;i. 

4  Knox  V.  Kivc'S,  14  Ala.  149;  48  Am. 
Den.  97;  I'owell  v.  Mills,  30  Mlsa.  231 ;  t>4 
Am.  Dec.  168;  Tunncll  v.  Pettljolin,  a 
Harr.  (Del.)  48;  I.iike  Shore  etc.  R.  K. 
Co.  t'.  Perkins,  2A  Mich.  3<i9;  12  Am.  Bep. 
27ft. 

fi  liy  n»aKe  a  carrier  may  be  held  liable 
as  a  currier  of  money.  Koinp  r.Coiightry, 
11  Johns.  109;  Cincinnati  etc.  Mail  Co.  v. 
Uoal,  I.Mnrt.  345;  Sheldon  v.  Kohinson,7 
N.  H.  157 ;  Kmcry  v.  Uersey , 4  Urecul. 407 ; 


Ifi  Am.  Doc.  268;  Harringtonr.  Mc.Shane,2 
Watts,  44.) ;  27  Am.  Dec.  321;  Mt-rwin  r. 
Ilutler,  17  Conn.  13S;  llosea  f.  McCro..^, 
12  Ala.  "43;  New  Jersey  Steam  Nav.  (,'0. 
f.  Merchants'  H.ink,  fi  IIow.  344;  Dwigbt 
V.  Brewster,  1  Pick.  .M);  U  Am.  Dec.  133; 
Allen  V.  Bewail,  i  Wend.  317;  Sowall  v. 
Allen,  6  Wend.  8.35;  Van  Santvoord  v. 
St.  John,  G  Hill,  158;  Kirtland  c.  Mont- 
gomery, 1  .'^wan,  452.  Orof  cash  letters. 
Ilosea  r.  McC^rary,  12  Ala.  .H47.  Or 
as  an  axent  to  sell,  and  return  the 
proceeds.  l.awBon  i:  sages  and  Customs. 
S78. 

«  Mutch.  Carr.,  §  7.<;     Umwno  Carr., 
§  67. 

157 


p 


§9G 


THE   DUTY    TO    RECEIVE. 


[.     KT  II. 


that    if    they    profcsn    to    be    tarriers    beyond    the 
State,     being     themselves,     at     the     time     the}'     so 

profess,  within  the  State,  they  are  bound  to  accept 

and  to  carry  goods  beyond  the  State  upon  the  terms  on 

which  they  profess  to  contract.' 

He  may  refuse  to  carry  gooc's  tendered  to  him  at  a 

phue  not  his  usual  busimss  place,  or  outside  his  busi- 
ness hours.- 

§  90.  Where  Goods  Ill-Conclitioned  or  Suspi- 
4;ioiis.  —  He  may  refuse  pr(ti)erty  not  pr(»perly  packed.'' 
An  'express  rompany  is  not  bound  to  receive  money  for 
transjjortation  unless  it  is  properly  secured  and  ad- 
dressed.* Hut  a  shipper  delivering  goods  to  a  carrier 
is  not  required  to  cover  them  so  as  to  protect  them 
from  ra!u,  -w  ind,  oi-  (ire.''  So,  he  may  refuse  suspicious 
packages  whose  contents  the  sliipjter  refuses  to  dis- 


1  irolicll  r.  I{.  Co-.^J  1..  .).  «'.  !'•  T:!;  scr 
jiOKt,  ('i)iinrc'tiiiK  CjirrU'is. 

•i  rickfoni  I-.  U.  Cr).,  12  >!.'<••:.  A  \V.  770; 
Cronkilo  r.Wi'lls,  .T2  N.  Y.  247  ;  l-ouisvillc. 
etc.  I..  Co.  V.  Kljinapan,  ll.i  Iml.  4sS; 
14  N.  E.  I'^p.  370.  In  11  ?'ciiiisylviiiiiii 
ciisf  T'laiiitilT  was  aci'iistoiiu'd  lo  ship 
coal  by  ilrfriulant^'  rallmail  for  trans- 
ix.rtation  beyornl  their  liiiu  ii|miii  the 
Kilaw.tro  Itivcr.  Drdndaiits  hail  al-o 
alhiwccl  iilaiiititr,  for  a.  nrtaiii  <'(Oi>i(h  ra- 
tion to  tisi!  llirir  wliart  ut  liu'  nvrr 
ti'riiiiiiiis  of  the  railroad ,  iiii,  s^iihM'- 
•inciilly,  ihiri'  not  hiin;;  room  for  all  th<! 
■sh'.ppc'rs,  tliiy  ihnicil  plaiiilitf  thr  wharf 
fai'i'ilirs,  whih!  thi  y  allowcil  olhrrs  to 
llM'  till'  wharf.  It  was  hi  Id, that  allhough 
transportation  hy  dcfcndanls,  roiiinio'i 
carrirrs,  was  ne('cs>arily  0|.;n  to  tliii 
piibliv'  withoutdi^rnininalioii,  yrl  wharf- 
agr  was  within  tlio  iliMTition  of  dc-fend- 
nnts,  and  n  ni.uiilatory  injnnrtion  wonid 
not 'ic  idinpt'MinK  llnin  to  all-.w  wliarf- 
uRi?  fui'i'.lics  lo  pl.iintiir  as  willasuth- 
prs:  And.'nrli'd  r.  H.  K.  Co.,  (W  I'a.  St. 
370 ;S  .\ni.  Vry  wm.  It  has  li.cn  hi  hi  in 
Malm-,  New  Ilanipshiri-  and  I'fnnsyl. 
vania  that  a  railroad   cannot  ^ivc  lo  one 

jr.s 


express  company  e(>rtain  privileges  and 
extra  facdilu  s  lor  conducting  its  busi- 
ness, and  .efiisi!  thcin  to  another  com- 
pany. New  KnK'and  K\.  Co.  r.  K.  Co., 
n7.Me.  1S8,  2  .\m.  Kep.  IBS;  McUulTcOf. 
It.  Co.,  »«/)r<i;  Sunfonl  v.  K.  f'o.,  21 1'a. 
M.  37H;  64  Am.  Dec.  fiC7.  itiit  tho  Su- 
preme Court  of  the  l'..ited  ."States  subho- 
qnently  decreed  that  an  express  com- 
pany has  no  rifiht  to  ask  thu  special 
privilefes  without  which  the  express 
bnsiniv.s  cannot  bi^  carried  on,  and  if  it 
P'ts  them  i',  must  be  by  a  special  c.-n- 
tri'ct,  which  the  carrier  may  mak':  with 
one  and  nduse  to  make  with  r.nother. 
Miinpliis  etc.  I{.  Co.  r.  .'South.  K-<,  Co.,  117 
i;.  '..  l;r,S.  C.  Itep.  64'.',t'.28. 

•1  Cnion  K\.  Co.  r.  Graham,  26  Ohio  i'A. 
V.K>;  Vickslmrg  Co.  v.  U.  3.  Kx.  Co.,  H 
South.  Kep.  3;2. 

*  Fitzgerald  f.  .\danis  Kj.  Co  .  24  Ind. 
447;  87  Am.  Dec.  341.  He  is  not  b  -und  tx, 
count  thu  monay  in  a  packa,i;e  tendered, 
and  his  refusal  raiaee  iju  presumption 
against  hini:  /<l. 

'•  Klnubor  r.  Am.  i:x.  Co.  .'.'  Win.  21; 
fl:  %  1.1.  Doc.  402. 


CII.  X.] 


TIIK   DUTY   TO    UECEIVE. 


§98 


ilose,'  or  goods  which  are  exposed  to  destruction  by 
a  mob  or  other  outbreak.- 


§  97.    Where  '£e  has  Insufficient  Room.~He  is 

not  to  be  compelled  to  carry  goods,  if  the  vehicle  which 
he  ordinarily  employs  for  the  transportation  of  goods 
is  not  able  to  contain  the  article  which  is  offered.  The 
ordinary  carrier  is  under  no  duty  to  provide  extra  carts 
or  wagons  to  satisfy  the  extra  demands  that  may  be 
made  on  them.^  But  in  the  case  of  the  railroads  of  the 
country  chartered  and  g'ven  special  privileges  by  the 
State,  not  only  the  statutes  of  many  of  the  States,^  but 
the  common  law,''  re(iulre  them  to  furnish  sufficient 
accommodation  for  such  property  as  may  be  offered  to 
them  for  transportation.  By  this  is  not  meant  that  the 
railroad  must  have  at  all  times  and  at  all  places  where 
goods  may  be  tendered  to  it,  cars  enough  tc^  transport 
them.  It  means  that  it  shall  provide  facilities  for  Hie 
amount  of  goods  it  has  reasonable  grounds  for  bel  v- 
ing  will  be  v)ffered  at  the  particular  time  or  place,  but 
shall  not  be  liable  for  failing  to  anticipate  or  ])rovide 
for  an  extraordinary  or  unusual  influx  of  freight." 

§  08.  Carriage  3Iust  be  ;ror  Hire.  —To  render  one 
liable  as  a  common  carric*,  i:  is  essential  that  the  car- 
riage shall  be  for  hire  and  not  gratuitous."     ''I  take 


< 


I 

r 

I 

r 
0) 

9 


»  ninFmorc  v.  U.  Co..  3  Fed.  1{ep.  na"!; 
Nitro-fvlycerine  Case,  15  Wall.  fiLM ;  liiley 
r.  Hone,  5  IJing.  217;  lirass  r.  U.  Co.,  G 
Kl.  &  11.  485;  Crouch  v.  U.  Co.,  14  Com. 
R.yil. 

2  Kdwards  v.  Sheffat,  1  Rast  604 ;  Hutch  ■ 
insoii  on  CarriiTB,  §  115;  Story  on  Hail- 
mcnts,  §  COS;  I'orcher  r.  K.  U.  Co.,  14 
Rich.  lf\.  And  see  Pearson  t<.  Dnane,  4 
Wall.  COB. 

3  Sl'o  Uiley  v.  Home,  5  Ring.  217;  Lov- 
«!Uf.  Hobbs,  Shaw  217. 


4  Seo  Tiallentine  r.  R.  CQ.,poi:l. 

-'<  Galena  etc.  U.  Co.  v.  IlJie,  18  111.  4S8; 
68  Am.  liec.  574. 

G  I'cct  r.  U.  Co.,  20  Wis.  694;  Galena 
etc.  U.  Co.  V.  Rae,  18  HI.  488;  68  Am.  Dec. 
574 ;  Faulkner  v.  R.  Co.,  51  Mo.  311 ;  Bal- 
lentine  v.  R.  Co.,  40  Mo.  491 ;  93  Am.  Pec. 
315. 

7  Citizens'  Bk.  r.  Nantucket  Steam- 
boat Co.,  2  Story  16;  Self  i\  Dunn,  42  Ga. 
628 ;  B  Am.  Rep.  544 ;  Littlcjohn  v.  Jones, 
2  McMnll.  366;  39  Am.  Dec.  132. 

159 


I 


§99 


THE   DUTY    TO   IWCEIVE. 


[PAKT  II. 


it  to  bo  oxfoodinji  cloar,"  s.nys  Mr.  Justice  Story,' 
*'tliat  no  person  is  a  loninioii  carrier  in  tlie  sense  of  the 
law,  who  is  not  a  cairier  for  hire,  that  is,  who  does 
not  recei^'*,  or  is  nut  entitled  to  receive  any  recom- 
pense for  his  services.  The  known  definition  of  a  com- 
mon carrier  in  all  our  books,  fully  establishes  this  re- 
sult. If  no  hire  or  recompense  is  payable  (,/•  (hhito  jus- 
llchw,  but  sometiiiuu  is  bestowed  as  a  <j;ratuity  or  volun- 
tary <;ifl,  (hen,  althouj^h  the  i)arty  may  transport 
either  [uM'sons  or  i>roper  -,  he  is  not,  in  the  sense  of  the 
law,  a  comuKtu  carrier,  but  he  is  a  mere  mandatory  or 
gratuitous  baih>e,  and  of  course  his  rij^hts,  duties  and 
liabilities  are  of  a  very  dilTerent  nature*  and  character 
from  those  of  a  common  carrier."-  Hut  as  in  the  case 
of  bailments  ^tiierally,  the  C(»nsideration  need  not  be 
direct.-'  Thus,  where  corn  was  shipped  by  a  railroad 
company  which  a«.;reed  to  return  the  empty  baj.?s  free,' 
where  empty  coal  oil  tanks  were  returned  free,''  and 
where  a  carrier  undertook  to  transport  goods  and  sell 
them,  and  brini,'  the  numey  arising;-  from  the  sale  back 
wilh  him  witii(»ut  charge,"  it  uas  held  that  neither  the 
carriage  of  the  empty  bags,  or  tanks,  noi-  the  return  of 
the  money  could  be  considered  as  gratuitous. 

§  00.    Currlag^e  Beyond  Carrier's  Konfo. — Iii  the 

transportation  of  goods  even  to  p(,iuts  not  far  distant 
it  is  not  always  jxtssible  to  liave  the  duly  performed  by 
only  one  carrier.  The  lirst  carrier  is  fre(piently  able 
to  perform  the  service  bul  in  part,  an<l  is  forced  to  rely 
upon  others  in  the  same  business,  and  whose  lines  ex- 
tend beyond  his  own.  to  complete'  the  carriage  which 
he  has  commenced.     The  carrier's  line,  we  will  sav,  ex- 


1  Ciiijcns'   ISk.   I.    Nantucket   Stenm- 
l)i)iit  (■<).,JSl(ir.v,4ir,, 
»  Sec  ant€  §  .U.    (iratultonB  Itailmcnli. 
'  Soe  ante  5  wi. 

1(50 


*  I'iPrce  r.  U.  «.Co.,23  Wis.  (87. 
•■>  SpcarH  r.  K.  Co.fi:  liaili.  ri;i. 
•1  ManinKton  r.  .^IrShuiit', '^  Watts,  44.1; 
2'  Am.  Dec.  :t'.'I. 


CM.  X.] 


THE   DUTY   TO    RECEIVE. 


§100 


I  i 


tends  from  A  to  B.  At  B  another  road  begins  which 
extends  to  C.  A  shipper  at  A  desires  to  have  goods 
sent  to  C,  and  delivers  them  to  the  carrier,  whose  line 
commences  at  A,  for  that  purpose.  It  is  obvious  that 
the  latter  in  enteriii"  into  this  contract  maj'  incur  two 
liabilities  at  hiH  (>;»uon,  viz ,  (a)  he  may  bind  himself 
to  carry  the  gi»(»ds  to  C,  employing  tlie  second  carrier 
to  perform  the  service  from  B  to  C  as  his  agent,  or  {h)  he 
may  simply  undertake  t<»  carry  the  goods  to  B,  and 
then,  as  the  agent  of  tl.'c  snipper,  deliver  them  to  the 
second  carrier  to  take  the.    cD  C. 

§  100.  Carrier's  Power  to  Carry  Beyond  His 
Koiitc. — A  commo!)  rjuiier  may  agree  to  carry  goods 
and  deliver  them  ai  a  jdace  beyond  his  own  route, 
and  such  an  agreement  is  not  iiltni  rircs.^  The  ef- 
fect oi  this  agreement  is  to  make  him  responsible  un- 
til delivery  of  the  goods  is  made  at  their  destination, 
and  the  connecting  carriers  become  his  agents 
for  whose  neglect  or  other  defaults  he  is  respon- 
sible, which  liability  cannot  Ix*  gotten  rid  of  by 
any  stipulation  that  his  responsibility  is  to  terminate 
at  the  eud  of  his  own  route.- 


1  lleiltlcld  on  Carriers,  sees.  l'JO-197; 
Grecn'M  Hrice  on  L'llra  Vires,  npp.  lii. 
67;<i  Hill  MfK.  Co.  V.  U.  <'o.,104Masn.  122; 
6  Am.  R.-i>.  2li2;  Wlioplor  f.  U.  Co.,  .SI 
Cal.  4r,;«i  Ami.  Di'c.  U7;  llelliwill  r.  U. 
Co.,  7  Foil.  I'cp.  CiN:  Kreebiirg  etc.  Coal 
Co.  r.  U.  Co.,  10  Mo.  (.'ilM'-)  5117;  .>^wift  v. 
I'acilic  Mail  S.  .S.  (  ,;.,  KHi  N.  Y.  201;  12 
N.  K.  Hep.  83;  Carey  f.  U.  Co., 
2'.t  Harli.  35;  Candco  r.  U.  Co.,  21 
Wis.  6S2;  94  Aiii  Dec.  M«;  Nashville 
etc.  U.  Co.  V.  Sp.  ayberry,  9  IleiHk. 
S!>2.  In  a  New  York  tasc  tt  is  said  that 
Die  plua  of  »/<rci  vires,  ncoordinn  to  it3 
jutit  meaninpr,  import.-*,  noi  tliat  llie  cor- 
poration could  not,  and  did  not  in  fact, 
niHlvc  tlio  unaiithorued  contract,  but 
thai  itougUt  not  to  liave  inadu  it.  Such 
adrVncc,  Iherofori,  necesuarily  rests 


upon  the  violation  of  trust  or  duty 
toward  tlie  Hliarcholders,  and  ia  not  to 
bo  entertained  where  its  alio  vsnce  will 
do  a  greater  wron<  to  innocent  third 
parties.  Tneac(ia)esccncpof  theshare- 
liolder.-i  in  the  abuse  will  preveni  the  in- 
terposition of  such  a  plea.  Itissellv 
It.  Co.,  22  N.  Y.  2r)fi. 

-  Cincinnati  etc.  1^  Co.  v.  Pontiu.?,  19 
Ohio  .St.  221;2  An.  Uep.  39l;Condictr. 
U.  Co.,  54  .N.  Y.  600,  Toledo  etc.  it.  Co.  r. 
Lockhart,  71  III.  627;  Gulf  etc.  U.  Co.  v. 
Wilhanks,  27  S.  W.  l.ep.  ,',02  (Tex.) ;  Gulf 
etc.  K.  Co.  r.  Wilson,  20  8.  W.  Uep.  131 
(Tex.);  Pereira  f.  It.  Co.,  fifi  Cal.  92; 
4  I'ac.  Uep.  92;  Itnssey  f.  U.  Co.,  4 
McCrary  40f);  Dunn  v.  U.  Co.,  fiS 
Mo.  2i;8;  Little  f.  Hemple,  8  Mo. 
99;  40  Am.   Dec.   123;  Washington  t;.  K. 

161 


§101 


THE  DUTY   TO   RECEIVE. 


[part  .11. 


§  101.  Not  Bound  to  Do  so. — The  law  does  not  com- 
pel the  carrier  to  do  business  beyond  his  own  lines  of 
transportation,^  and  hence,  he  may  stipulate  that  he 
shall  not  be  liable  for  any  loss  or  damage  except  such 
as  may  occur  on  his  own  route — in  other  words,  he  may 
undertake  simply  to  deliver  the  goods  to  the  connect- 
ing carrier — in  which  event  his  liability  will  cease  with 
such  delivery,  he  having  done  all  that  either  the  law 
or  his  agreement  requires  him  to  do.-     A  stipulation  in 


Co.,  101  v.  C.  23<l;  Maskos  r.  Ai:i.  S.  S. 
Co.,  15  Phila.  488;  Te.ins  etc.  K.  Co.  v. 
Scrivener,  2  Tex. App. Case  .SlH;Gnlf  etc. 
R.  Co.  V.  Golding,  23  A.  A  K.  U.  K.  Co. 
732;  Perkins  r.  U.  Co.,  47  Me.  .TO;  74  Am. 
Dec.  507;  Jennings  r.  K.  Co.,  5  N.  Y. 
(Sniit.)  140;  Merchants*  etc.  Trans.  Co.  r. 
Bloch,b6Tenn.  372;  G  Am.  .'^t.  Uep.  847; 
Galveston  etc.  H.  Co.  r.  Allison,  ,17  Tex. 
193;  Kyle  f.  U.  Co.,  10  Kicli.  r,82;  70  Am. 
Dec.  231 ;  Soathwestern  K.  Co.  v.  Thorn- 
ton, 71  Ga.  6». 

1  I'itts.  etc.  U.  Co.  r.  Jlortnn.  fit  Ind.  .130 ; 
28  Am.  B-;..  •,"?:Lotspercli  r,  ){.  Co.,  73 
Ala.  "■ ;. 

2  J:  li-'juc!  •"'0.  ■  Andropcopprin  Mills, 22 
Wa:'  '.'4:  Uailr"  .('.  Co.  r.  I'ratt,  22  Wall. 
123;y'  '  nunr  i;.i  ,36I()wa,  1S0;14 Am 
Rep  Ki.be'.n;k  v.  R.  Co.,  49  X.  Y.  4'Jl ; 
4aU■.^^.  JV, .)17 ; .ILXna  '.ns.  Co.  r.  Wheeler, 
4S  .'f'vT.  Fr.  Olfi'  Anieriean  Kxpress 
Co.  t.  ^.T..!jii  .V.i'.unal  Hank,  fi'J  I'a.  St. 
394  ;  8  A  ti  Rt..;,.yi  ;  1!,.,m1  v.  Ciiittil  .states 
Ex.  Co.,  4u:  1.  4«2;  8  Am.  Iti'p.  501; 
Lamb  i'.  R.  Co.,  46  N.  Y.  271 ;  7  Am.  Hip. 
327:  Hall  r.  R.  Co.,  L,  U.  10  (}.  li.  4.'.7;  111. 
Cent.  R.  R.  Co.  v.  Fraiikcnljc  is,  ri4  111. 
88;  5  Am.  Rep.  '12;  Cincinnati  etc.  R.  Co. 
f.  Ponliiis,  19  Ohio  St.  221;  2  Am.  Hep. 
391;  isiirrouplis  i:  R.  Co.,  loo  Ma>s.  VJi!;  1 
Am.  Rep.  78;  Honklcy  r.  R.  C().,3'Jli(iTiip. 
A  C.  2'Jl ;  St.  LoiiLs  etc.  R.  To.  v.  I'iper,  13 
Kan.  60.1;  Aldriilge  r.  K.  Co.,  15  Com.  15., 
N.  S.,  5S2;  Fowlesr.  R.  R.  Co.,  7  Kxch. 
699;  Kent  i\  R.  Co.,  L.  R.  10  Q.  }',.  i ;  .Mar- 
tin r.  American  Kxpress  Co.,  19  Wis.  33r>; 
Oakcy  r.  Gordon,  7  I.a.  Ann.  2.'i.1;  Sulli- 
van r.  Thompson,  99  -Mass.  2,')9;  Witbcck 
II.  Holland,  65  Ilarb.  443;  IViidcrpist  v. 
Adams  Kxpress  Co.,  101  Mass.  12o;  I'cm- 
berlon  Co    r.  !{.  Co.,  104  .Mass.  U\;   W.,lil 

102 


V.  Holt,  2r,  Wis.  703;  Moriartj'  v.  Ua-n- 
deu's  Kxpress,  1  Daly,  227;  Cnited  Slates 
Kxpriss  Co.  r.  Rush,  24  Ind.  4')3;  ChicjiKo 
etc.  R.  Co.  f.  MoMtford,  fiO  111.  175;  Jla- 
Khee  r.  R.  Co.,  45  N.  V.  514;  6  Am.  pp. 
124;  St.  .John  r.  Kxpress  Co.,  1  Wo  hIs 
fil5;  Ricketis  r.  R.  Co.,  4  I.ans.  446;  61 
Rarb.  18;  Camden  etc.  R.  Co.  r.  Korsyth, 
61  I'a.  St.  81 ;  I't  nnsylvania  R.  Co.  f. 
SchwarzcnberKcr,  46  I'a.  St.  208;  84  Am. 
Dee.  490;  Karniers'  etc.  Hank  v.  Cham- 
plain  Tians.  Co.,  23  Vt.  186;  56  Am.  Dec. 
68;  T.iylori'.  R.  Co.,  32  Ark.  393;  29  \ni. 
Rep.  1;  I'liited  .Slates  Kxpress  (!o.  r. 
Haini'S,  67  111.  137;  Krie  U.  Co.  r.  Wilcox, 
84  111.  239;  25  Am.  Rip.  451;  (iilxon  v. 
American  Kxpress  Co.,  1  Hnn.  3n7;  I'hi- 
fer  v.  R.  Co.,  89  N.  C.  311 ;  45  Am.  Rep.  f  87  ; 
Kast  Tenn.  R.  Co.  v.  Hi-umh>y,  5  I.ea,  4iil ; 
Chica^'o  etc.  R.  Co.  f.  Chnreh,  12  III.  A  (.p. 
17;  Piedmont  Mfg.  Co.  v.  R.  (;o.,  19  S.  C. 
353;  ItriKr.  R.  Co.,  .iO  Kan.  661;  (;.,U1- 
smith  r.  R.  Co.,  12  Mo.  App.  479;  Hadi..  r. 
U.  S.  Kx.  Co.,  52  Vt.  335;  36  Am.  ttep.  J5; 
Ala.  etc.  R.  Co.  v.  Tiionins,  3  South.  Rep. 

802;  111.  Cent.  R.  Co.  v.  Joute,  13  111. 
(App.)  425;  .\tehison  etc.  R.  Co.  f.  Den- 
ver etc.  R.  Co.,  4  U.  S.  S.  C.  Rep.  18.1; 
Ilardintr  t:  International  Ni.v.  (!o.,  12 
Keil,  Rep.  liis;  Crntral  R.  Co.  c.  Avaiit,5 

S.  K.  Rep.  78  ((Ja.);  Pittsburg  etc.  R:  Co. 

f.  .Morton,  61  Iml.  539;  28  Am.   Rep,  6S2  ; 

Taylorr.  R.  Co.,32Ark.  883;  29  Am.  Rep. 

1 ;  Iliissey  r.  R.  Co.,  4  McCrary ,  405 ;  Hard 

inj?   r.  Int.   etc.    Nav.  Co.,  16   Phila.  434; 

Knoll  c.  R.  Co.,9H  .N.  C.7.35;  Riekerson-lc. 

Co.  r.R.  Co., 67  .Mich.  110;  MeConnelle.  U. 

Co.,  9  S.  K.  Rep.  1(.06;  S(  liitT  f.  R.  Co.,  16 

Hun.  278;  81    N.    Y.   38;  St.   l.onis  etc.  R. 

Co.  r.  Lamed,   103  III.  J03;    Cummins  r. 

R.  Co.,  9  A.  &  K.  R.  R.  Cas.,  36;Cobb  v.  IL 


I 


\ 


CII.  X.] 


THE   DUTY    TO   RECEIVE. 


§102 


a  bill  of  lading  by  one  of  a  line  of  carriers  that  the  com- 
pany in  whose  possession  the  goods  are  at  time  of  loss 
or  damage  shall  alone  be  liable,  is  a  reasonable  one.' 
So  is  a  fondition  that  the  liability  of  the  <  arrier 
accepting  the  goods  shall  cease  on  their  delivery  to  the 
connecting  carrier.- 

§  102.  Effect  of  Agreement  Not  to  Carry  Beyond 
Route.  — The  effect  of  this  agreement  is  to  umke  the 
flrst  carrier  the  agent  of  the  shipper  to  make  delivery 
to  the  connecting  carrier,  with  power  to  bind  him  by 
such  contracts  as  he  makes  in  the  execution  of  his 
agenc}'."'  And  >he  shipper  is  responsible  to  connecting 
carriers  for  his  mistakes.'     Thus,  where  the  last  car- 


Co.,  38  Idwa.  COl;  O'Uoiirki-  r.  R. 
Co.,  44  Iowa,  526;  Atchison  rlc.  IJ.  Co.  v. 
Roach,  ,H5  Kas.  "40;  (Julf  etc.  R.  Co.  v. 
liainl,  IJ.S.  W.  Ri'p.  5S0;  Now  York  etc. 
Steam  Co.  V.  Wright,  2«  S.  W.  Rop.  luG 
(Trx.). 

1  rhilci-r.  R.  Co.,89  N.  C.  ;ni  ;*.  r.  45  Am. 
Kep.  0H7  ;  WcinhciK  i'-  U-  '  'o.,  91  N.  C.  .11 
(1NS4);  Schiir  v.  R.  Co.,, "52  How.  I'r.  ill; 
Hailil  V.  U.  S.  Kx.  Co.,  52  Vt.  .S.I5;  ,%  Am. 
Kcp.  757. 

S  Ti'xas  U.  Co.  V.  UoK(!r>i,  3  S.  \V.  Hep. 
660  (1SH7)  Tcnn.  Such  a  coiilract  will  be 
picviiiiii'il  from  the  fact  that  a  clausi' 
tliiis  liiiiitinK  the  liability  appears  in  IIk; 
hill  (if  laihiii;,  althoii^li  the  shipper's  at- 
tentiiiii  w:is  not  called  to  it,  it  apfiearin^ 
that  he  hail  previously  shippeil  siiiiilii- 
articles  ami  taken  similar  hills  of  laiiinj;. 
Kast  Teiin.  etc.  R.  (;o.  r.  Hr'niiley.  5  I,ea 
401;  Wabash  etc.  K.  (^o.  v.  .Ia^'Kcrman, 
ll.MII.  4(17;  4  N.  K.  Rip.  641. 

3  llriKKs  V.  H.  Co.,  «  Allen,  246;  Ki  Am. 
Dec.  626 ;  Sipiire  f.  R.  ( 'o.,  !tH  Mass.,  240 ; 
Rawson  r.  llollaiui,  M  N.  Y.  611 ;  17  Am. 
Rep.  .Sy4  ;  Nelson  t:  R.  Co.,  48  N.  Y.  5o7. 

4  Schneiileri'.  Kvans,  25  Wis.  241  ;  a  Am. 
Hep.  211;  ItiigRS  r.  R.  Co.,  «  Allen,  the 
Conrt  saying;  "The  same  jierson  may 
be,  ami  often  is,  not  only  a  cominon  car- 
rier, lint  also  the  forwanlinjt  aftenl  of  the 
owner  of  the  k"oiIs  to  he  transported. 
Stury  ou  liuilmentB,  §§  502,  6.17.    lie  must 


necessarily  act  in  the  latter  capacity 
whenever  he  receives  Koods  which  are 
to  bo  forwarded,  not  only  on  his  own 
line,  but  to  some  distant  point  beyond  it 
on  th(!  lin.'  of  the  next  currier,  or  on  that 
of  the  lust  of  several  successive  carriers, 
on  the  rejrular  and  usual  ronte  and 
course  of  transportation,  to  which  tliey 
are  to  be  carried  ami  there  delivered  to 
the  consiKnee.  The  owner  jienerally 
does  nut.  and  cannot  always,  accompany 
them,  and  itno  his  personal  dire<-tions  to 
each  one  of  the  successive  carriers.  Ue 
therefori?  necessarily,  in  his  own  ab- 
sence, devolves  upon  the  e;i!rier  to 
whom  he  delivers  th  •  (toods  the  duty, 
and  invests  him  with  the  authority,  to 
Rive  the  niiuisite  and  proper  directions 
to  each  su<'cessive  carrier,  to  whom,  in 
due  course  of  transportation,  they  shall 
he  passed  over  for  tho  purpose  of  being 
fonvarded  to  their  ultimate  place  of  des- 
tination, citherwisi!  till  y  woulil  never 
reach  that  place.  Kor  the  llrst  carrier 
can  only  transport  the  tfooils  over  his 
own  portion  of  the  line  ;  and  if  he  is  not 
authorized  to  j;'v>-'  t'"'  carrier,  with 
whose  route  his  own  connects,  direc- 
tions in  reference  to  their  further  trans- 
portation, they  must  stop  at  that  point; 
for  althouKh.  in  (fener:d,  every  carrier  in 
bound  to  accept  and  forward  all  goods 
which  axH  brought  and  tendered  to  him, 

1G3 


0 

2 

% 


§102 


THE   DUTY    TO   RECEIVE. 


[part  II. 


rier  receives  goods  from  an  intermediate  one,  who  neg- 
lects to  inform  him  that  the  freight  is  paid  through, 
the  last  carrier  is  not  liable  for  this  omission,  and  may 
hold  the  ;^oods  a  reasonable  time  to  ascertain  the 
facts.^ 

If  the  connecting  carrier  will  not,  or  cannot  receive 
them,  the  first  carrier  must  at  once  notify  the  shipper, 
and  meanwhile  hold  them  for  him  as  a  wareliousemau,^ 
and  in  every  way  he  must  use  the  diligence  of  a  paid 
agent,  in  seeing  that  they  are  protected  from  loss  or 
damage;''  and  must  not  bo  guilty  of  a  mistake  in  in- 
structing the  second  carrier  as  to  the  destination  and 
delivery  of  the  property.' 


s 


yet  lie  is  not  so  bouml  unless  he  is  duly 
anil  seasonably  informed  and  advised  of 
the  place  to  whieh  they  are  to  bo  trans- 
ported. Story  on  Uailments,  §  5.i'2;  Jud- 
son  V.  Western  IJailroad,  ^  Allen,  f)20. 
Ileneo  it  results,  liy  inevitable  inipliea- 
tion,  that  when  an  owner  of  soods  deliv- 
ers them  to  u  carrier  to  be  transported 
over  his  route,  and  thenee  over  the  roulo 
ot  )i  succeeding  carrier,  or  the  routes  of 
several  eueressive  carriers,  ho  makes 
and  constitutes  the  persons  to  whom  he 
delivers  them  liis  forwarding  afieuts, /or 
whose  acta  ia  the  txecution  of  that  at/enry 
he  is  himself  responsible.  And  therefore, 
if  the  seveial  successive  carriers  carry 
the  goods  aeeordiug  to  the  directio's 
which  arc  fciveu  by  th-!  forwardiuj,' 
agents,  they  act  under  the  authority  ol 
the  owner,  and  I'annot  in  any  sense  be 
considend  as  wrong-doers,  altlioUL'li 
they  are  carried  to  a  plai  to  vvhieli  he 
did  not  intend  that  they  .-hould  be  .-int. 
And  in  such  case,  the  last  I'arricr  will  be 
eu.itled  to  a  lien  upon  the  goods,  not 
only  for  the  freight  earned  by  him  <>n  his 
(.  .^'n  jiart  of  the  route,  but  also  for  all  the 
fru^iht  which  has  been  aecnmulatiug 
from  the  commencement  of  the  carnage 
until  he  receives  thcni,  which,  aet'ording 
to  a  very  convenient  custom,  which  is 
now  fully  recognized  and  established  as 
a  jiroper  and  legal  in-oceediug,  ho  has 
paid  to  the  preceding  carriers." 

164 


1  Union  Ex.  Co.  r.  Shoop,  85  Pa.  St. 
32.5. 

2  Kailroad  f'o.  v.  Sfannfactnring  Co.,  16 
Wall,  ais;  Nutting  r.  U.  Co.,  1  Gray  502; 
lUwson  r.  Holland,  59  X.  Y.  Gil ;  17  Am. 
Hep.  394;  Lesinsky  r.  Great  West.  Ues- 
patch  Co.,  10  Mo.  (App.)  134;  I.,ouisville 
etc.  U.  Co.  V.  Campbell,  T  Ileisk.  25,1;  re. 
Peterson,  21  Fed,  Uep.  S85;  see  Demiug 
r.  U.  Co.,  21  Fed.  Uep.  25. 

3  1{eagan  r.  K.  Co.,  Gl  \'.  11.  570;  Sulli- 
van r.  Thompson,  101  .Ma.ss.  120.  Where 
a  contract  gives  the  currier  an  op- 
tion between  modes  of  transportation 
the  option  must  be  exercised  with  a 
view  to  the  owner's  interest.  Ulitz  v. 
Union  .S.  S.  Co.,  51  Mich.  5.")8;  17  X.  W. 
Kep.  .55. 

4  Dana  r.  U.  Co.,  50  flow.  Pr.  428. 
Thus  a  carrier,  who  receives  goods 
under  a  bill  of  lading  containing  in- 
structions to  deliver  them  at  the  end  of 
,ta  route  "to  the  order"  of  the  consignor 
"or  his  assigns,"  as  well  as  marks  and 
directions  indicating  a  place  beyond  as 
their  ultimato  destination,  and  who, 
without  giving  liie  instructions,  for- 
wards them  to  that  placb  by  interme- 
diate carriers,  the  last  of  whom  delivers 
them  up  to  the  consignee  without  requir- 
ing him  to  produce  the  bill  of  lading,  is 
liable  for  the  value  of  the  goods.  North 
r.  Merchants'  Trans.  Co.,  14t)  Mass.  315; 
15  N.  K.  Itep.  77'J. 


en.  X.] 


THE  DUTY   TO    RECEIVE. 


§103 


If  the  first  carrier  receipts  the  goods  to  be  trans- 
ported to  a  point  beyoiui  its  line  for  a  definite  sum 
named,  and  tlie  consignor  is  charged  a  larger  sum 
therefor,  the  receijjtiug  carrier  is  responsible  to  him 
for  the  excess.'  t^o,  where  a  railrctad  guarantees 
against  overcharges  by  connecting  carriers,  it  is  lial)le 
for  such  an  overcharge,  and  cannot  escajie  liability  by 
setting  up  an  uneonnccted  stipulalion  in  the  contract 
that  it  shall  not  be  liable  for  damages  to  the  goods 
after  they  have  passed  beyond  its  own  line.- 

The  first  carrier  will  still  be  liable  for  failing  to  de- 
liver the  goods  to  IJH'  connecting  carrier  with  reason- 
able dispatch,''  aind  Iik4'wise  for  any  injury  which  oc- 
CUT'S  beyond  his  route  throngli  his  (rwni  neglect,  as  by 
fumiishing  defective  cai-s,'  or  defectively  sealing  pack- 
ages containing  valuables.*^ 

§  108.  Proof  of  Aprreenient  to  Carry  Beyond 
Route. — ^^^'  (]n<'stiou  whether  the  can-iei-  has  ui:- 
<lertaken  to  tranM[H)rt  the  goods  to  their  destinatio-u 
though  beyond  his  own  route  or  not,  is  one  of  in- 
tention of  the  parties,  and  must  be  (\stablished  either 
by  an  express  contract,"  or  by  evidence  that  the  carrier 


1  Detroit  etc.,  I{.  Co.  v.  McKcnzic;  4.1 
Mich. 60!*;  5  N.W.  Kcp.  lO.tl .  TardoH  r.  U. 
Co.,  :<5  I.ii.  .\nn.  l.'i. 

2  I.iltic  Ifdck  etc.  n.  Co.  v.  Oaniela,  4'.i 
Ark.  3.V2;  5  S.  W.  Uep.  .•W4. 

3  Fox  r.  K.  Co.,  Ill  N.  W.  Kep  223 
(Mass.) ;  l<ii8«oy  '•.  II.  Co.,  i  McCrary  4(i5; 
LouisTillc  elc.  \i.  Co.  t-.  Caiiipl)»'ll,  7 
Hcl^k.  253;  lUwson  ••.  MollaiKl,  W  N,  V. 
611;  17  Am.  llpp.  3'.i4;  Irish  r  It.  lo.,  i;> 
M inn.  :i7i'> :  IH  Am.  Uep.  340;  Itanrroft  r. 
I{.  Co.,  47  lown  2t2;  2".l  Am.  Kep.  482; 
Union  etc..  K.  Co.  r.  Hurt.  .10  l-:..  '.<•*. 
And  it  IH  no  (Iffunse  that  the  teromt 
carrier  niiRlit  have  niaiii-  u|i  for  hm  de 
fault  in  this  respect.  I'hila.  etc.  K.  ('o. 
V.  Lehman,  ."ifi  Md.  w.'. 

ilndianapi  i.N  etc.  U.  Co.  c.  StraiD,  Kl 
111.  SU4. 


6  Overland  etc.  Mail  Co.  r.  Carroll,  7 
Colo  4:1 ;  1  I'ac.  Kep.  i;rt2. 

«  Contrartu  Cotmtriied  to  he  Thrinnjli 
Contrwts.—WUcw  the  rooiIh  are  inarkvil 
!o  a  piiiiit  beyond  the  carrier't;  line  ami 
the  bill  of  lading  or  receipt  loaves  the 
place  of  destination  blank,  it  m  gen- 
erally coiistrutd  to  be  a  throiiKh  con- 
tract. CultSf.  IJreincril,  42  Vt.  .V>il,  1  Am. 
Ktp.  .15.!;  Fortier  v.  I'enn.  Co.,  18  III. 
(  vpp.)2t50.  So  when  the  llrs'  carrier  gave 
a  receipt  for  goods  "to  be  delivered  on 
prc-i-ntation  of  this  receipt  at  ( ',"  a  place 
beyond  its  route.  Kyle  v.  K.  (,'0.,  in 
Rich.  (>.  C.)  3S2.  So  when  the  contract 
rcffd:  "New  York,  Nov.  14,  lUr.t.  Uc- 
caived  of  J.  H.  .S.  Bi.t  boxes  *  •  to  be 
f'^rwardcd  per  Hudson  K.  K.  freight 
train  to  Chicago."     Schrocder  v.  U.  Co., 

165 


§103 


THE   DUTY   TO   KECEIVE. 


[PAKT  II. 


held  himself  out  as  a  common  carrier  for  the  entire  dis- 
tance,' or  other  circumstances  indicatin<;  an  under- 
standi'ig  that  the  contract  was  for  through  transporta- 
tion.* 

An  intention  to  make  a  throu^'h  contract  is  shown 
by  the  receipt  by  the  first  carrier  of  the  freight  charges 
for  the  entire  distance,  or  the  giving  of  a  through  rate,=' 
or  where  several  companies  cany  over  a  line  of  which 
each  is  a  link  and  they  give  through  bills  of  lading 


St  ■ 

Moi 
etc. 

Am. 


6  Dner,  6i5.  And  see  St.  I-onis  etc.  R.  Co. 
f.  I'iter,  13  Kas.  60,5;  Toledo  etc.  H.  r-o. 
f.  Merriman.r/:  111.  IJ.'i;  4  Am.  Kep.  KW; 
Palmer  »•.  MollBml,  61  N.  Y.  416;  10  Am. 
Ilep.  C16;  Brown  r.  Molt,  '12  Ohio  f^t.  U'J; 
Uiinsoii  V.  n.  Co.,  41  N.  W.  Ucp.  62!'.  For 
cases  where  the  court  coiislrntil  the 
coi\tract  as  one  not  (or  throuKli  car- 
riage see  Iteed  r.  U.  S.  K.^p.  Co.,  4S  N. 
Y.4G-2;  Converse  v.  K.  Co.,  33  Conn.  1G6; 
Am.  Kx.  (;o.  r.  Second  Nat.  Iik.,iiy  I'm. 
■  •'eudergasl  f.  .AiliuiiH  Kx.  ('o., 
•■  Kast  Tcnn.  K.  Co.  r. 
,,  t4  (ja.  27H;  Merchants' 
.^■is.  i;o.  r.  Moore,  RH  HI.  VM;  m 
Dec.  541;  Mynck  i:  U.  Co.,  107  U. 
S.  102;  1  S.  C.  Ucp.  425. 

1  In  usceriaining  the  relation  exiRtiug 
between  connecting  lines  of  carriers 
the  parties  are  not  conllncd  to  what  i.s 
said  in  tlie  bill  of  lading ;  hut  llie  .-^hiiiper 
may  introduce  the  way  hills  of  the  car- 
rier wlih  whom  his  contract  was  made, 
the  statements  of  the  agents  of  the  car- 
rier made  when  the  hill  of  lading  was 
given,  or  any  special  contract  or  under 
standing  between  the  parties  ;it  llie 
time  the  goods  were  shipped.  St.  .John 
r.  Kxpress  Co.,  1  Woods,  G12;  Harris  r. 
M.  Co.,  10  All.  Kep.  512  (Conn./ ;  Udbinson 
V.  Merchants  DiMpatch  Co.,  4."i  Iowa  470; 
Root  I'.  U.  Co.,  45  N.  V.  524;  Railroad  Co. 
v.  I'ratt,  22  Wall.  12.t;  llill  Manf'g  Co.  r. 
I{.  Co.,  104  Mass.  122;  tiuimby  i:  Vandcr- 
bilt,  17  N.  Y.  30(3;  Toledo  etc.  K.  Co.  i-. 
Merriman,  .V2  111.  123;  4  Am.  Kep.  5'M; 
CoUender  r.  Uinsniore,55  N.  Y.  260. 

2  Hoot  c.  U.  Co.,  45  N.  Y.  524;  Morse  r. 
It.  Co.,41  Vt.  650;  Cotts  v.  Urainerd,  rl 

166 


Vt.  666;  1  Am.  Rep.  3S3 ;  Najac  r.  U.  Co., 
7  .\llen3iS;  Nashua  Lock  Co.  r.  K.  t^o., 
48  S.  II.  ;-i3'.t;  2  Am.  Kep.  'Hi;  Harter  i'. 
Wheeler,  4'  N.  II.  '.•;  G  Am.  It.  p.  434; 
Gray  r.  .Jackson,  51  N.  II.  ".i;  12  Am.  Kep. 
1;  .SI.  J(din  I.  Van  Santvoord.  B  Hill,  1.58. 
It  is  a  (juestion  of  fact  I'nr  the  jury. 
I'hila.  etc.  K.  Co.  r.  KaniHey,  S'.t  I'a.  .^t.  474. 
The  M.  I'.  I!y.  Co,  received  a  piano  at 
W.,  to  be  carried  to  L.,  and  delivered  to 
a  connecting  common  carrier  for  trans- 
portation to  1'.  .\t  li.  the  track  of  the 
M.  1*.  Ky.  crossed  the  track  of  the  K.  * 
M.  K.  Co.,  the  tracks  and  stations  being 
connected  by  a  V.  The  piano  was  car- 
ried to  L.  by  the  M.  I'.  Ify.,  and  deliv- 
ered to  two  draymen,  to  be  transferred 
to  the  II.  &  M.  K.  Co.  at  its  station,  Ite 
fore  delivery  to  the  last-nameil  railroad 
company,  and  while  in  possession  of  the 
drayman,  it  fell  out  of  the  wagon  and 
was  broken,  and  was  not  received  by 
the  agent  of  the  It.  &  M.  K.  Co.  The 
.Supreme  Court  held  the  .'.I.  I*.  K.  Co. 
liable.  Mo.  Pac.  K.  Co.  i\  Young,  41  N. 
W.  Kep.  641. 

:i  Weed  r.  K.  K.  Co.,  10  Wen<l.  534 ;  Kali 
road  Co.  V.  Androscoggin  Mills,  22  Wall. 
^'.<l;  Hergr.  Steam.  Co.,  5  Iiaily,3y4;  Can- 
dee  f.  U.  Co.,21  Wis.  5W;  04  Am.  Dec. 
5G6;  St.  John  r.  Kxpress  Co.,  1  Woods, 
612;  Atlanta  etc.  U.  (;o.  r.  Texas  Orate 
Co.,!)S.  K.  Kep.  600  ((ia.) ;  Clyde  V.  Uub- 
bard,  ss  I'a.  St.  3.58;  Aiken  i:  K.  Co., 68  la. 
.16.1;  Hairis  r.  K.  Co.,  16  Am.  Rep.  612. 

Contra,  McCarthy  f.  R.  Co.,  9  Mo. 
(App.)  159;  KastTenn.  K.  Co.  V.Mont- 
gomery, 44  Ua.  278. 


ClI.  X.] 


THE   DUTY   TO   RECEIVE. 


§104 


' 


and  charge  through  freight.'  Where  there  exists  a 
jmrtnership  between  u  number  of  curriers,  any  one  of 
thcni  may  be  ma«ie  liabh?  for  a  loss  or  (himage  occur- 
ring on  any  part  of  the  associated  line.-  If,  however, 
the  arrangement  between  the  carriers  does  not  amount 
to  a  partnership,  but  is  a  mere  agreement  inter  ,sr,  as 
to  the  resi)onsibility  each  will  assume  upon  trallic  over 
their  lines,  it  gives  no  right  to  the  shipper,  for  there  is 
no  privity  between  him  and  the  carrier.'' 

§  104.  Actual  Delivery  to  Connectinpr Carrier  lle- 
qnired.  — To  end  his  responsibility,  however,  a  proper 
di'livery,  in  good  order,  to  tin?  connecting  carrier  is 
absolutely  recjuired.  lie  cannot  relieve  himself  of  his 
liability  as  a  common  carrier  and  an  insurer,  by  un- 
loading the  goods  at  the  end  of  his  route  and  storing 
them  in  a  warehouse,^  nor  by  merely  notifying  the  con- 


I  llonston  etc.  II.  Co.  i".  I'ark,  1  Tox. 
A  pp.  CaB.  :i!2;  ToxiiH  (!tc.  K.  Co.  v.  I'lir- 
r\Kli,  1  Tex.  App.  ('lis.  942;  Mo.  Pac.  K. 
Co.  1'.  Ityan,  2  Tex.  App.  Cas.'lHO;  I.ooinis 
f.  K.  Co.,  17  Mo.  (App.)  341);  Moorc  v. 
Henry, IS  Mo.  (.\pp.)  n."i;  Wiggins  Ker- 
ry Co.  r.  K.  Co.,  7:t  Mo.  HS'J;  Helliwell  v. 
J{.  Co.,  7  Ketl.  Itep.  fiS;  KreeburR  etc. 
Vnu\  Co.  1'.  U.  Co.,  10  Mo.  (.Vpj).)  fi'.li ; 
Uicliari)B  r.  The  Clinrles  1*.  Chonteau,  :<1 
F'eil.  Kep.  M'i;  Harp  r.  The  (irniul  Eva,  1 
Woods,  1H4 ;  Myrick  c.  K.  (  o.,  'J  Itiss,  44. 

4  .Schiiller  r.  Adams  K.\.  Co.,  5  Mo. 
(App.)  .Sl(i;  Itarri'tt  r.  U.  Co.,  0  Mo. 
(App.)  72fi;  Wyiiian  f.  K.  Co.,  4  Mo. 
(.\pp.)  .'55;  (Marksonr.  Kric  etc.  Dispatch 
Co.,  tj  111.  (.Viiji.)  2H4  ;  Nashua  I.ock  Co.  v. 
It.  Co.,  4S  N.  II.  .'i.t'.t;  2  Am.  Kcp.  242; 
Ulock  V.  K.  Co.,  13'.t  Mass.  308;  1  N.  K. 
Uep.  .348;  Case  r.  Ualdwiu,  1,30  Mass.  90; 
sue  Wilson  r.  U.  Co.,  21  Cratt.  6J4 ;  Carter 
V.  I'eck,  4  Snced,  203;  67  Am.  Dec.  604; 
Montgomery  etc.  U.  Co.  v.  Moore,  51 
Ala.  394;  Ellsworth  v.  Tartt,  20  Ala. 
733;  02  Am.  Dec.  749;  HriKRS  r.  Van- 
derbilt,  19  IJarb.  222;  Gass  r.  U.  Co., 
\)9  Mass.  220;  90  Am.  Dec.  742;  Weylaud  i'. 
Elkius,  Holt  N.  I*.  227;  1  Stark.  272; 
Laugher  v.  Painter,  5  Ham.  A  ('.  475; 


(iill  r.  U.  Co.,  I,.  U.  8  (J.  n.  l;!0;  Cobb  v. 
Aiibot,  14  rick.  2.S9;  I'atlison  v.  Ulauch- 
ard,  5  N.  V.  IHG;  Converse  r.  Norwich 
etc.  Trans.  Co.,  33  Conn.  IfiO;  (Jincinnati 
etc.  K.  Co.  f.  .^pratt,  2  Dnv.  4;  Hart  v. 
K.  Co.,  a  N.  Y.  37;  59  Am.  Dec.  4(7;  Host- 
wick  V.  Champion,  II  Wend.  571;  Cham- 
pion r.  Ii()>tMick,  18  Wend.  175;  31  Am. 
Dec.  376;  Fromont  c.  Conpland,  2  Hin;;. 
170;  Nashnu  Lock  Co.  e.  K.  Co.,  4S  N.  H. 
.339;  2  Am.  Kcp.  242;  Hartcr  f.  Wheeler, 
49  N.  II.  9;  0  Am.  Kep.  434. 

3  AiKcn  c.  K.  Co.,  132  Mass.  423;  !St. 
Louis  etc.  Ins.  Co.  v.  U.  Co.,  104  U.  S  UC; 
Hot  Sprin;!S  K.  Co.  v.  Trippe,  42  Ark.  46u  ; 
4S  .\m.  Kep.  05;  Citizens  Ins.  Co.  r.  Kountz 
Line,  4  Woods,  208;  (Jass  r.  K.  Co.,  99 
Mass.  220;  IHJ  Am.  Dec.  742. 

4  Kailroad  Co.  v.  Manufacturing  Co., 
16  Wall.  318;  Dresbach  f.  K.  Co.,  57  Cal. 
462;  Kansas  City  Trans.  (Jo.  r.  Neiswang- 
er,  18  >lo.  (App.)  103;  Condon  r.  K.  Co., 
65  Mich.  218;  re  Peterson,  21  Fed.  Bep. 
885 ;  Katon  r.  Nowmark,  33  Fed.  Kep.  891 ; 
Lewia  t:  K.  Co.,  11  Meto.  509;  Mobile  etc. 
K.  Co.  V.  Hopkins, 41  Ala.  486;  McDonald 
r.  R.  Co.,  34  N.  Y.  497;  Fenner  v.  K.  Co., 
44  N.  Y.  505;  4  Am.  Rep.  505;  Mills  v.  R. 
Co.,  45  N.  Y.  622;  Reed  v.  U.  S.  Kx.  Co., 

167 


'ej( 


§105 


THE   DUTY   TO    RKCEIVK. 


[part  II. 


nectinj;  carrier  that  the  floods  have  arrived,  and  ask- 
iiij^  him  to  send  for  thcin;'  nor  by  phuinj;  the  goods  in 
a  df'[)(>t  used  by  him  and  a  connecting  carrier  in  com- 
mon; it  not  being  sliown  tliat  they  were  idace<l  on  tlie 
phitform  of  tile  connecting  rarrier,  or  liad  been  in  some 
manner  given  over  to  him- — in  whirli  ease  tlie  delivei'y 
to  the  second  carrier  woiihl  be  consich'red  compU'te.' 

§  105.  Aliter  as  Between  the  Carriers  Themselves. 

— "As  between  the  connecting  carriers  themselves,  ii, 
is  undoubtedly  true  that  by  e.\j)ress  agreement,  by 
usage  and  custom  in  a  particuhir  trade,  or  from  the 
course  of  dealing  between  tlie  particular  carriers,  the 
responsibility  may  be  change<l  from  one  to  another  by 
wh.,t  is  known  as  constructive  delivery,  which  implies 
no  actual  or  manual  transfer  of  the  possession  of  the 
goods,  liut  as  to  the  owner  of  the  goods,  the  doctrine 
of  constructive  delivery  can  have  no  api)lication,  and 
he  can  bo  recpiired  to  look  for  the  reparation  (►f  his  loss 
only  to  the  carrier  in  the  actual  ])ossession  when  it 
occurred;  and  the  carrier  whose  duty  it  was  to  make 
the  delivery  to  the  siicceeding  one,  will  be  presumed 
to  have  still  had  the  ])ossession  until  it  be  shown  that 
it  had  been  actuallv  transferred  to  another."^     The 


48  N.  Y.4fi2;  Uoot  r.  U.  Co.,  45  N.  Y.  524; 
Dnnson  r.  K.('o.,3Lnns.2r)5;  MichnclH  v. 
K.  Co.,30K.  V.  5fi4;  (Jags  v.  U.  f'o.,«) 
Mass.  320;  West.  Trans.  Co.  v.  Xewhall, 
24  III.  477;  Merchants'  Dosp.  Co.  i'.  Kahn, 
76  in.&iO;  111.  Cent.  U.  Co.  r.  Mitchell, 
68  111.  471  i  18  Am.  Uep.  5f)» ;  ,Ktna  Ins. 
Co.  V.  Wheeler,  5  Lans.  480;  49  N.  Y.  61G; 
South.  Kx.  Co.  r.  Hess,  5.S  Ala.  19; 
Brintnall  t'.  n.  eo.,;i2  Vt.  r,r,5;Wnhl  v. 
Holt,  26  Wis.  70.S;  Louisville  etc.  K.  Co. 
r.  Campbell,  7  Ileisk.  2M ;  Irish  t:  U.  Co., 
18  Minn.  A'd;  18  Am.  Itep.  .(40;  Lawrence 
f.  K.  Co.,15  Minn.  3V0;  2  Am.  licp.  130; 
Conkey  r.  U.Co.,31  Wis.  619;  11  Am.  Kep. 
631 ;  overruling  Wood  v.  U.  Co.,  27  Wis. 
641;  9  Am.  Uep.  465,  where  it  had  been 
ruled  that  the  liability  of  the  first  car- 

168 


rier  continues  only  until  the  Koodfi  aro 
ready  for  the  coflncctinK  carrier  and  he 
has  had  a  reasonable  time  in  which  to 
take  them  away. 

1  Gould  i:  Chapin,  20  N.  Y.  259;  76  Am. 
Dec.  378;  Miller  r.  Nav.  Co.,  10  N.  Y. 
431;  Selma  etc.  H.  Co.  r.  liutts,  43  Ala. 
385;94Am.  Dec.  694;  Hermann  r.  (iood- 
rich,21  Wis.  543;  94  Am.  Dec.  562;  Palmer 
r.  R.  Co.,  6  New  Kng.  Uep.  470  (Conn.) 

2  Kent  V.  U.  Co.,  L.  K.  10  (.).  IJ.  1 ;  Con- 
key  r.  R.  Co.,  31  Wis.  619;  11  Am.  Kep. 
630. 

3  Converse  r.  Norwich  etc.  Trans.  Co., 
33  Conn.  166 ;  Pratt  v.  U.  Co.,  95  U.  S.  43. 

4  Hutch.  Carr.  §  104 ;  Palmer  v.  H.  Co., 
13  Atl.  Kep.  818  (Conn.) 


OH.  X.] 


TILE  DUTY   TO   RECEIVK. 


§100 


owner,  though  not  obliged  to,  mny  huo  and  recover  his 
loss  from  the  connecting  carrier  to  whom  the  goods 
have  been  only  constructively  delivered.'  In  all  the 
States  (except  Georgia-),  the  action  may  be  brought 
against  the  carrier  in  whose  custody  the  goods  were 
at  the  time  of  the  loss  or  injury,  there  being  a  surticient 
privity  between  the  shii)p('r  and  the  connecting  car- 
rier to  enable  him  to  sue  on  the  contract  of  shipment 
made  with  the  tirst  carrier/' 

§100.  Receipt  of  Goods  ^larked  to  Place  Beyond 
Route— The  English  Uiile. — It  is  the  <loctrine  of  tin* 
English  courts  that  where  a  carrier  receives  goods  di- 
rected to  a  place  beyond  his  route,  and  does  not,  by 
contract,  limit  his  responsibility  to  the  end  of  his  own 
route,  he  engages  to  deliver  them  at  their  destination, 
and  is  liable  as  such  until  so  delivered.'  He,  and  not 
the  connecting  carrier,  must  be  sued,  even  where  the 
loss  takes  i)lace  beyond  his  own  line.'"'  The  English 
rule  is  followed  in  Georgia."  In  several  Slates,  the  doc- 
trine of  the  English  courts  is  adhered  to,  with  the  dif- 
ference that  the  shipper  is  giv«'n  his  choice  of  suing 
the  first  carrier,  or  the  one  in  whose  actual  custody 
the  goods  were  when  the  loss  or  damage  occurred.^ 


1  ^tna  Ins.  Co.  r.  Wheeler,  49  N.  V. 
eili;  Packard  f,  Taylor,  35  Ark.  402;  37 
Am.  Kep  .S7;  Mo.  I'nc.  I{.  Co.  i:  H.  Co.,  25 
Fed.  Kep.  317;  South.  Kx.  Co.  r.  McVeigh, 
2n(;rntt.  2G4. 

2  See  }io8l  §  l()(). 

3  I'aikard  r.  Tnylor,  35  Nob.  420;  37 
Am.  Kep.  .'57;  Halliday  v.  U.  Co.,  74  Mo. 
15!t;  41  Ala.  .WJ;  Independence  Mills  Co. 
V.  II.  Co.,  72  Iowa,  535;  Atchison  etc.  U. 
Co.  r.  Uoach,  na  Kas.  740;  Sonth.  Kx.  Co. 
V.  Van  Meter,  17  Kia.  803;  Conkey  f.  U. 
Co.,  31  Wis.  (il'J;  11  Am.  Hep.  RW. 

4  MtiKchamp  r.  K.  Co.,  8  M.  &  W.  421 ; 
Collins  I.  U.  Co.,  n  K.\.  SOO;  Coxon  i.  It. 
Co.,  5  Hurl.  AN.  274. 

5  lil.    Scothorn  v.  K.  Co.,  8  Kx.  341. 


«  Mosher  f.  .South.  Kx.  Co.,  S8  Oa.  37 ; 
Cohen  v.  .^outh.  Kx.  Co.,  45  CJa.  148; 
SonUi.  Kx.  Co.  f.  .Shea,  3H  Go.  Sl'J;  Fnl- 
voy  f.U.Co.,76(Ja.  577;  2  Am.  St.  Kep.  6k; 
.Savannah  etc.  U.  Co.  r.  I'ntchard,  77  Ga. 
412;  Boutlicastern  K.  Co.  v.  Thornton,  71 
Gn.  61;  Contrnl  It.  Co.  r.  ConibH,  70  (ia. 
633;  48  Am.  K«p.  583.  But  see  the  Ga. 
Code,  §  2084. 

1  Alabama — Mobile  etc.  K.  Co.  r.  Cope- 
land,  G.i  Ala.  2i;t;  ,35  Am.  Kep.  219;  Ix)ais- 
villoetc.  U.  Co.  f.  Myer,  78  Ala.  697;  Ala- 
bama etc.  U.  Co.  r.  Mount  Vernon  Co.,  4 
South.  Hop.  656.  F/orirfa -Itennett  r. 
I'ilyaw,  1  Fla.  403.  /i/uiin'.i— Illinois 
Central  It.  Co.  f.  KrankenberK,  54  111.  88; 
5  Am.  Uep.  92;  Krie  11.  Co.  r.  Wilcox,  84 

109 


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WEBSTER,  N.Y.  I4S80 

(716)»72-4503 


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§106 


THE  DUTY  TO  RECEIVE. 


[part  ir. 


In  support  of  this  doctrine,  it  is  argued  that  a  ship- 
per must  rely  on  the  carrier  with  whom  he  deals.  He 
can  not  be  supposed  to  know  the  particular  portion  of 
the  transit  which  the  first  carrier  controls,  much  less 
the  otJier  ov.'uers  or  proprietors  of  the  continuous  line. 
He  intends  to  make  one  contract,  but  not  two  or  three 
or  ho'''  ^  dcz,en.  When  he  places  his  property  in  the 
hand;  of  tha  carrier,  he  at  once  loses  all  control  over 
it.  If  it  1  :iot  delivered,  how  is  he  to  discover  at  what 
particu!  u'  portion  of  the  route  it  was  lost?  He  would 
bo  force  '  to  ^^ely  on  the  statements  of  the  carriers  them- 
selves, who  would  be  little  likely  to  aid  him  in  his 
search.  If  he  did  succeed  in  fixing  the  responsibility, 
he  might  find  himself  obliged  to  assert  his  claim 
against  a  party  hundreds  of  miles  away,  and  under 
cir^'umstances  which  might  well  discourage  a  prudent 
man,  and  induce  him  to  bear  his  loss  rather  than  incur 
the  expense  and  trouble  of  pursuing  his  remedy  against 
so  distant  a  defendant.  The  first  carrier,  on  the  con- 
trary, has  facilities  for  tracing  the  loss,  not  possessed 
by  the  public.  He  is  in  constant  communication  with 
his  associates  in  the  business;  he  has  their  receipts  for 
the  property  delivered  to  them,  and  with  no  incon- 
venience at  all,  could  charge  the  loss  to  his  negligent 
acent.^ 


in.  23!) ;  25  Am.  Kep.  451 ;  Illinois  Central 
R.  Co.  V.  Copeland,  24  111.  332;  76  Am. 
Bee.  749;  Chicago  etc.  U.  Co.  v.  People, 
66111.  ,SG5;8Am.  Rep.  690;  U.  S.  Express 
Co.  V.  Haines,  G7  111.  137;  Milwaulioe  etc. 
R.  Co,  V.  Smith.  84  ill.  239;  Field  t'.  R. 
Co.,  71  111.  458;  Illinois  Central  R.  Co.  v. 
Johnson,  34  111.  HS9;  Adams  Express  Co. 
f.  Wilson,  81  111.  339;  Illinois  Central  R. 
Co.  V.  Ccwles,  32  111.  UC;  Chicago  «tc.  R. 
Co.  V.  Montfort,  60  III.  175;  Wabash  etc. 
R.  Co.  V.  Jaggerman,  115  111.  407;  Fortier 
f.  I'enn.  Co., 18  111.  (App.)  260;  Ohio  etc. 
R.  Co.  V.  Enrich,  24  111.  (App.)  24S. 
/oi«a— Mnlligun  v.  li.  Co.,  36  Iowa,  181; 
14  Am.  Rep.  614 ;  Angle  v.  R.  Co.,  9  Iowa, 
403.  New  JImnpshire— hock  Co.  v.  B. 
Co.,  48  N.  H.  .339;  Gray  v.  Jackson,  51  N. 

170 


H.  9;  12  Am.  Rep.  1.  yennes«ee— Louis- 
ville etc.  R.  Co.  V.  Campbell,  7  Beisk. 
253;  Western  etc.  R.  Co.  v.  McKlwee,  6 
Ileisk,  208;  Carter  v.  Hough,  4  Sneed, 
203;  East  Tennessee  R.  Co.  v.  Nelson,  1 
Cold.  272;  East  Tennessee  R.  Co.  v. 
Rogers,  6  Heisk.  143;  19  Am.  Rep.  689; 
'ouisville  etc.  K.  Co.  r.  Weaver,  9  Lea.  38. 
1  .jv,e  argnments  of  Rolfe,  J.,  in  Mns- 
champ  V.  R.  Co.,  supra;  Lord  Cranworth 
in  Directors  v.  Collins,  7  U.  L.  Cas.  194; 
Channell,  R.,  in  Wilby  v.  R.  Co.,  2  II.  ft 
N.  707;  I'erley,  J.,  m  Lock  Co.  v.  R.  Co.. 
supra;  Breese,  J.,  in  111.  Cent.  R.  Co.  v. 
Frankenberg,  supra;  Freeman,  J.,  in 
East  Tenn.  B.  Co.  r.  Rogers,  supra,  and 
in  Western  etc.  R.  Co.  v.  McElwee, 
supra. 


CH.  X.] 


THE  DUTY  TO  RECEIVE. 


§107 


'  w 


§  107.  The  American  Kule. — But  the  prevailing 
rule  in  the  United  States  is,  that  the  acceptance  of 
goods  directed  to  a  point  beyond  the  carrier's  line,  is 
considered  to  imply  nothing  more  than  an  agreement 
on  the  part  of  the  carrier  to  transport  to  the  end  of 
his  route  and  there  deliver  to  a  connecting  carrier  to 
complete  the  carriage,  the  courts  considering  it  not 
just  that  the  extraordinary  liability  of  a  common  car- 
rier shall  be  extended  beyond  his  own  routes,  where 
alone  he  has  an  opportunity  of  choosing  for  himself  his 
servants,  and  of  guarding  the  property  entrusted  to  his 
care.^ 

The  English  doctrine,  as  followed  in  several  of  the 
States,  appears  to  be  founded  upon  reason  and  justice, 


Federal  Courts— Railroad  Co.  v.  Pratt, 
22  Wall.  123;  Railroad  Co.  v.  Mfg.  Co.,  16 
Wall.  318;  Stewart  v.  R.  Co.,  10  Rep.  618; 
1  .McCrary,  312;  Myrick  v.  R.  Co.  107  U.  S. 
102;  Sumner  v.  Walker,  30  Fed.  Rep.  261 ; 
Central  Trust  Co.  v.  R.  Co.,  31  Fed.  Rep. 
247;  St.  Lonis  Ins.  Co.  f.  It.  Co.,  104  U.  S. 
146.  Arkansas— St.  Louis  etc.  R.  Co.  f. 
Weakly,  50  Ark.  379;  7  Am.  St.  Rep.  104; 
Little  Rock  etc.  R.  Co.  v.  Glidewell,  39 
Ark.  497.  Connecticut— Converae  v.  R. 
Co.,  33  Conn.  166;  Hood  r.  R.  Co.,  22 
Conn.  502;  Klmore  r.  R.  Co.,  23  Conn. 
457 ;  63  Am.  Dec.  143.  Kansas— lierg  v. 
Atcbidon  etc.  R.  Co.,  30  Kas.  561.  Maine 
—Inhabitants  V.  Uall,  61  Me.  517;  Skin- 
ners. Ilall,  60  Me.  477;  Perkins  I'.  R.  Co., 
47  Me.  573 ;  74  Am.  Dec.  507.  Maryland— 
lialtimore  etc.  R.  Co.  v.  Schamacher,  29 
Md.  168 ;  96  Am.  Dec.  510.  Massachusetts 
— Burroughs  D.  R.  Co.,  100  Mass.  26;  1 
Am.  Rep.  78;  North  v.  Merchants' etc. 
Co.,  146  Mass.  315;  Darling  r.  R.  Co.,  U 
Allen,  295;  Nutting  v.  R.  Co.,  1  Gray,  502. 
Aftcftii/an— McMillan  v.  E.  Co.,  16  Mich. 
79;  93  Am.  Dec.  208;  Detroit  etc.  R.  Co.  v. 
McKenscic,  43  Mich.  609;  Fleming  v. 
Mills,  6  Mich.  420.  Minnesotti— Irish  v.  R. 
Co.,  19  Minn.  376;  18  Am.  Rep.  340;  Ortt 
V.  R.   Co.,   36  Minn.    396.    MUsissippi— 


Crawford  v.  Southern  I...  Ass'n,  51  Miss. 
222 ;  24  Am.  Rep.  626.  Vt/tssoMri— McCar- 
thy 4..  R.  Co.,  9  Mo.  (App.)  159;  Grover 
etc.  Machine  Co.  v.  R.  Co.,  70  Mo. 672;  35 
Am.  Rep.  444;  Snider  v.  Express  Co.,  63 
Mo.  376;  Dimmitt  v.  R.  Co.,  103  Mo.  422, 
Afterwards  changed  by  statute.  Kew 
Hampshire— Gray  v.  Jackson,  51  N.  U.  9; 

12  Am.  Rep.  1.  Netv  York-Babcockv.R. 
Co.,  49  N.  Y.  491;  Root  v.  R.  Co.,  45  N.  Y. 
524;  Reed  v.  United  States  E-vpress  Co., 
48  N.  Y.  4G2 ;  7  Am.  Rep.  561 ;  Condict  t'. 
R.  Co.,  59  N.  Y.  500;  St.  John  v.  Van 
Santvoord,  25  Wend.  660;  6  Uill  157; 
Lamb  v.  R.  Co.,  46  N.  Y.  271 ;  7  Am.  Rep, 
.S27;  Weil  v.  Merchants'  Trans.  Co.,  7 
Daly  456.  Korlh  Carolina— Phillips  v. 
R.  Co.,  78  N.  C.  294 ;  Knolt  v.  R.  Co.,  98  N. 
C.  73;2  Am.  St.  Rep.  321.  Pennsylvania 
—Camden  etc.  R.  Co.  r.  Forsyth,  61  Pa- 
st. 81.    Rhode  /stonrf— Knight  v.  R.  Co., 

13  R.  L  57-2;  43  Am.  Rep.  46;  Uarris  v.  R. 
Co.,  15  R.  I.  571.  Smith  CoroZjna— Pied- 
mont Maufg.  Co.  V.  R.  Co.,  19  S.  C.  353. 
rer»M)n<— Farmers'  etc.  Bank  v.  Cham- 
plain  Trans.  Co.,  16  Vt.  52;  42  Am.  Dec. 
491;  Cutts  V.  Brainard,  42  Vt.  666;  1  Am. 
Rep.  3r)3;  Uadd  v.  U.  S.  Express  Co.,  S2 
Vt.  355;  36  Am.  Rep.  Ti'.. 

171 


§108 


THE  DUTY  TO  RECEIVE. 


[PAET  II. 


and  has  been  approved  in  Missouri  by  recent  legisla- 
tion.* 

§  108.  Rigfht  of  Connecting  Carriers  to  Exemp- 
tions in  First  Contract. — The  first  carrier,  in  his  bill 
of  lading  may  provide  that  its  stipulations  shall  extend 
to  and  inure  to  the  benefit  of  each  and  every  company 
or  person  to  whom  the  carrier  issuing  it  may  intrust 
or  deliver  the  property,  in  which  case  its  terms  will  de- 
fine and  limit  the  liability  of  every  succeeding  carrier.'* 
And  though  the  contract  with  the  first  carrier  does  not 
reserve  to  connecting  carriers  the  benefit  of  its  limita- 
tions and  conditions,  yet  a  connecting  carrier  who  re- 
ceives goods  from  another  to  be  forwarded  to  their 
destination,  is  entitled  to  the  exceptions  which  the  lat- 
ter has  made  with  the  shipper,  in  case  the  contract 
with  the  original  carrier  was  for  the  entire  route.^ 
Thus,  where  a  carrier  receives  goods  to  be  carried  to  a 
place  beyond  its  route,  a  condition  in  the  bill  of  lading 
that  they  are  shipped  at  "owner's  risk,"  protects — so 


1  R.  S.  Mo.  1S89  §  944.  Of  this  statute  the 
Supreme  Court  says;  "The  purpose  of 
the  lepislature  was  to  prescribe  a  duflnite 
rule  of  liability  fornegligence  of  a  com- 
mon carrier  in  harmony  with  what  has 
been  denominated  the  English  nile  upon 
the  subject."  Dinimittv.  II.  Co.,  103  Mo. 
433;  15  S.  W.  Uep.  761.  But  the  carrier 
may  still  make  a  speci;.!  agreement  limit- 
ing his  liability  to  his  own  line.  Dimmitt 
V,  R.  Co.,  tupra,  and  an  agreement  of 
this  kind  will  cover  a  negligent  loss  on 
the  connecting  lino.  Nines  v.  R.  Co.,  107 
Mo.  47.t;  18  S.  ''V.  Rep.  26  (overruling 
Ueil  V.  R.  Co.,  16  Mo.  (App.)  363;  McCann 
r.  Kddy,  27  S.  W.  Rep.  541  (Mo.) ;  and  see 
C'raycr  ft  v.  R.  Co.,  18  Mo.  (App.)  487; 
On- r.  R.  Co.,  21  Mo.  (App.)  333. 

2  U.  S.  Express  Co.  r.  Harris,  51  lud. 
127;  Levyt'.  South.  Express  Co.,  4  S.  C. 
234 ;  Whitworth  r.  R.  R.  Co.,  45  N.  Y.  602 ; 
87N.  Y.  414,  The  carrieron  whose  road 
the  loss  occurred,  when  sued  for  dam- 

172 


ages,  must  allege  and  prove,  in  order  to 
get  the  benefit  of  an  exemption  from  lia- 
bility in  the  bill  of  lading  given  by  a  dif- 
ferent carrier  and  in  a  different  state, 
that  the  exemption  is  allowed  by  the  law 
of  the  state  where  the  goods  were 
shipped.  International  etc.  R.  Co.  i'. 
Moody,  9  S.  W.  Rep.  465  (Tex.) 

3  Maghec  v.  R.  Co.,  46  N.  Y.  514;  6  Am. 
Rep.  125;  Manhattan  Oil  Co.  i'.  R.  Co.,  54 
N.  Y.  19" ;  Lamb  v.  R.  Co.,  2  Daly,  454 ;  46 
N.  Y.  271;  7  Am.  Rep.  327;  Railroad  Co. 
V.  Androscoggin  Mills,  22  Wall.  594 ;  Ilal- 
liday  f.  R.  Co.,  74  Mo.  159;  41  Am.  Rep. 
309:  St.  Louis  etc.  R.  Co.  v.  Weakly,  50 
Ark.  104;  7  Am.  St.  Rep.  104;  Oakey  t'. 
Gordon,  7  La.  Ann.  235 ;  Hall  v.  R.  Co.,  L. 
R.  10  Q.  B.  437;  Bristol  etc.  R.  Ccr.  Col- 
Ims,  7H.  L.  414;  Merchants'  Trans.  Co. 
V.  BoUes,  80  111.  473 ;  U.  S.  Ex.  Co.  v.  Har- 
ris 51  Ind.  127;  Babcockv.  R.  Co.,  49  N. 
Y.  491;   Taylor  r.  R.  Co.,  39  Ark.  148. 


CII.  X.] 


THE  DUTY  TO  RECEIVE. 


§109 


far  as  it  goes — all  the  lines  wbieli  may  handle  the 
goods,  until  they  reach  their  destination.*  The  reason 
is  that  the  connecting  carrier  is  the  agent  of  the  first 
carrier,  and  can  legally  claim  the  benefit  of  any  con- 
tract made  with  his  principal.^ 

But  where  a  bill  of  lading  specifies  certain  railroads 
over  which  goods  are  to  be  carried,  and  the  goods  are 
sent  a  part  of  the  way  by  a  road  not  thus  mentioned, 
such  road  will  not  be  entitled  to  its  exceptions.^ 

§  109.  Power  of  First  Carrier  to  Contract  with 
Connecting  Carriers. — As  an  agent  to  ship  has  an  im- 
plied authority  to  contract  respecting  the  terms  of  ship- 
ment,* and  as  the  first  carrier  (when  the  contract  is 
not  a  through  one)  "is  certainly  employed  by  the  owner 
to  deliver  the  goods  to  the  second  carrier  just  as  plainly 
as  a  carman  is  employed  by  a  merchant;"^  it  can  hardly 
be  disputed^  that  he  has  an  implied  authority  to  accept 
a  bill  of  lading,  or  to  make  a  contract  containing  ex- 
emptions from  liability,  with  the  connecting  carrier, 
provided,  those  exceptions  are  those  contained  in  the 
original  contract  and  no  other.'^ 


o 

a 
< 
•J) 


1  Kiff  V.  n.  Co.,  32  Kas.  263.  t  Pac.  Rep. 
iui. 

2  See  Owen  v.  R.  Co.,  9  S.  W.  Rep.  698. 

3  Aferchants'    Dispatch  Co.  v.  BolleB, 
80  111.  473. 

*  New  Jersey  Steam.  Co.  r.  Merchants 
Bk.,  6  How.  344;  Squire  f.  R.  Co.,  98 
Mass.  239;  Steers  v.  Liverpool  Steam. 
Co.,  D7  N.  Y.  1 ;  Uawson  i:  Ilolland,  59  N. 
Y.  611;  Moriarity  v.  Harnden's  Kx.,  1 
Daly,  227;  Christenson  r.  American  Ex. 
Co.,  15  Minn.  270;  Sl'elton  t'.  Merchants' 
Dispatch  Trans.  Co.,  S3  N.  Y.  (S.  C.)  527; 
69  N.  Y.  258  ;  Robinson  v.  Merchants' 
Dispatch  Trans.  Co.,  45  Iowa  470;  Meyer 
«.  Harnden's  Kx.  Co.,  24  How.  Tr.  290; 
Bean  v.  Green,  12  Me.  422  ;  Fille- 
brown  V.  R.  Co.,  65  Me.  462;  Levy  f. 
Southern  Ex.  Co.,4S.  C.  242;  111.  Cent. 
B.  Co.  V.  Joute,  13  111.  (App.)  424;  Hus  v. 


Kempf,  lOBen.  821;  Hill  v.  R.  Co.,  144 
Mass.  284;  Jennings  v,  R.  Co.,  6  N.  Y. 
(Supp.)  140;  Hutchings  v.  Ladd,  10  Mich. 
5.  Aliter  where  the  carrier  knows  the 
agent  has  no  authority.  Moses  v.  R.  Co., 
24  N.  U.  71 ;    The  Pacific,  1  Deady.  17. 

fi  Wheel.  Carr.  277. 

6  Though  the  authority  is  questioned 
by  Allen  J.  in  Babcock  v.  R.  Co.,  49  N. 
Y.  491. 

i  Lamb  v.  R.  Co.,  46  X.  Y.  271.  But 
following  the  rule  as  to  notices  (see  post 
§  140)  the  shipper  is  not  bound  by  any  no- 
tice or  regulations  of  the  second  carrier 
not  assented  to  by  the  first.  Jadson  v. 
R.  Co.,  6  Allen,  485;  Mich.  Cent.  R.  Co.  v. 
Hale,  6  Mich.  243;  Railroad  Co.  v.  Pratt, 
22  Wall.  123 ;  Adams  Ex.  Co.  v.  Harris,  21 
N.  K.  Rep.  840. 

173 


03 

a; 


§110 


THE  DUTY  TO  RECEIVE. 


[part  II. 


But  when  the  first  carrier's  contract  is  not  a  through 
one,  but  is  only  to  carry  to  the  end  of  his  line,  and  then 
pass  the  goods  over  to  a  connecting  carrier,  the  lat- 
ter, (unless  the  first  carrier  has  expressly  reserved  to 
him  the  benefit  of  the  exceptions  in  the  contract),  can- 
not claim  the  benefit  of  the  provisions  of  the  original 
contract^ 

§  110.  Other  Bights  and  Liabilities  of  Connecting 
Carriers. — The  second  carrier  cannot  sr  ^  the  first  one 
for  failing  to  deliver  goods  to  him  which  cie  first  carri(?r 
hud  transported  to  the  point  of  connection,  even  though 
the  shipper  of  the  goods  had  contracted  with  the  firi-it 
carrier  to  have  them  ;jhipped  over  the  road  of  the  sec- 
ond carrier.^  There  is  in  such  case  no  privity  between 
the  parties.  The  connecting  carriers  are  not  bound  by 
the  contract  of  the  first  carrier  as  to  rates  of  freight,^ 
not  even  where  the  first  carrier  has  guaranteed  that  the 
rate  over  the  connecting  line  shall  not  be  above  a  certain 
amount.*  A  connecting  carrier  is  entitled  to  his  charges 
for  his  carriage,  though  the  consignor  had  directed 
that  the  goods  should  be  carried  from  the  terminus  of 
the  first  carrier's  line  to  their  destination  by  another 
carrier  than  the  one  to  whom  they  were  delivered,'' 
unless  the  connecting  carrier  knew  of  such  direction,* 


1  Adams  Ex.  Co.  v.  Harris,  21  N.  K. 
Rep.  875  (Ind.) ;  Bnrronghs  v.  R.  Co.,  34 
N.  \V.  Rep.  875  (Mich.) ;  Taylor  v.  R.  Co., 
39  ..Vrk.  148;  Bancroft  v.  Merchants'  Dis- 
patch Co.,  47  la.  462;  29  Am.  Rep.  412; 
Martin i».  Am.  Kx.  Co.,  19  Wis.  336;  Cam- 
den etc.  R.  Co.  V.  Forsyth,  61  Pa.  St.  81; 
Merchants'  Trans.  Co.  v.  Bolles,  80  111. 
473 ;  ^tna  Ins.  Co.  v.  Wheeler,  49  N.  Y. 
616 ;  5  Lan».  480 ;  Babcock  r.  R.  Co.,  49  n! 
Y. 491. 

2  Wilmington  etc.  R.  Co.  r.  Green- 
Tille  etc.  R.  Co.,  9  S.  C.  325;  30  Am.  Rep. 
23  (1877). 

«In  the  absence,  of  course,  of  any 

174 


partnership  between  them  or  any  an- 
thority  given  by  one  to  the  other  to 
make  contracts.  Sumner  v.  R.  Co.,  7 
Baxt.  345;32  Am.  Rep.  865;  Lewis  v.  R. 
Co.,  25  S.  C.  249;  Crossan  ti.  R.  Co.,  21  N. 
F-  Rep.  307 ;  Georgia  R.  Co.  v.  Murray,  11 
S.  K.  Rep.  779. 

4  The  remedy  of  ths  shipper  in  such 
case  is  against  the  first  carrier  on  his 
guaranty.  Schneider  v.  Evans,  25  Wis. 
241 ;  3  Am.  Rep.  56. 

»  Price  V.  R.  Co.,  21  Pac.  Rep.  188. 

6  Denver  etc.  R.  Co.  v.  Hill,  21  Pac. 
Rep.  914. 


CH.  X.] 


THE  DUTY  TO  RECEIVE. 


§111 


The  connecting  carrier  is  not  liable  for  a  loss  or  in- 
jury on  the  line  of  a  prior  carrier.*  So,  the  intermedi- 
ate one  of  several  successive  carriers,  whatever  his  lia- 
bility may  be  to  the  carrier  to  whom  the  goods  were 
delivered  by  the  shipper,  is  not  liable  to  the  shipper 
for  tbe  negligence  or  overcharge  of  carriers  subsequent 
to  himself,  the  contract  for  carriage  having  been  made 
by  the  shipper  with  the  initial  carrier.- 

When  the  connecting  carrier  receives  the  goods,  he 
must  forward  them  without  delay,  and  cannot  excuse 
a  delay  on  the  ground  of  a  regulation  that  goods  so 
received  are  not  to  be  forwarded  until  the  first  carrier 
preseniis  his  bill  for  back  chargies."' 

§  111.     Presumption  as  to  Time  of  Damage. — 

Where  a  connecting  carrier  is  sued  for  an  injury  to 
goods  which  ^eie  delivered  to  the  initial  carrier  in 
good  order,  the  presumption  is  that  he  received  them 
in  the  same  condition,  and  the  burden  is  on  the  defci^d- 
ant  to  explain  the  injury,*  and  this  rule  is  not  changed 
by  the  fact  that  the  last  carrier  transports  them  over 
its  line  in  the  foreign  car  in  which  he  received  them.'^ 

But  it  must  be  shown  that  the  goods  were  in  good 
condition  when  delivered  to  the  first  carrier.  To  show 
that  they  were  in  good  condition  when  packed  at  the 
shipper's  house  before  shipment,  is  not  enough." 


1  Lowenbnrg  v.  Jone?,  56  Miss.  688 ;  31 
Am.  llep.  379;  Snmner  r.  Walker,  30  Fed. 
Rep.  261. 

2  Uill  V.  R.  Co.,  60  Iowa  196;  14  N.  W. 
Rep.  249. 

8  Dunham  t'.  R.  Co.,  70  Mo.  164;  35  Am. 
Rep.  314 ;  Michaels  v.  R.  Co.,  30  N.  Y,  564; 
86  Am.  Dec.  425,  the  Court  saying  :"It8 
(the  first  carrier)  omission  to  do  so  or 
to  give  notice  that  such  charges  existed 
should  have  been  taken  as  evidence  by 
the  defendant  that  in  fact  there  were 
no'back  charges." 

4  Smith  V.  R.  Co.,  43  Barb.  225 ;  41  N.  Y. 
620;  Langhiin  r.  R.  Co.,  28  Wis.  204;  9 
Am.  Rep.  493;  Shriver  t'.  R.  Co.,  24  Minn. 
606;  31  Am.  Rep.  353;  Dixon  v.  R.  Co.,  74 


N.  C.  538,  approving  the  Langhiin  case 
above;  Memphis  etc.  R.  Co.  t>.  Hol- 
loway,  9  Baxt.  189.  Contra,  Mar- 
qaette  etc.  R.  Co.  v.  Kirkwood,  45 
Mich.  61;  40  Am.  Rep.  453  (1880). 
Goods  received  by  a  railroad  company 
from  a  connecting  road,  and  carried 
over  its  line,  are  presumed  to  have  been 
received  "as  in  good  order"  within  Ga. 
Code,  §2084;  Central  R.  Co.  «.  Rogers, 
66  Ga.  261.  See  South,  etc.  R.  Co.  v. 
Wood,  71  Ala.  216;  46  Am.  Rep.  309. 

5  Leo  V.  R.  Co.,  30  Minn.  438;  15  N.  W. 
Rep.  872. 

6  Lake  Krie  etc.,  R.  Co.  v.  Cakes,  11  111. 
App.  489. 

175 


OH 


CHAPTER  XI. 


THE    RESPONSIBILITY   DURING   TRANSIT. 


Section  112.  Carrier's  Responsibility  Begins  on  Delivery. 

113.  Actual  or  Constructive  Acceptance  Necessary. 

114.  At  What  Place  Must  Delivery  be  Made. 

115.  To  Whom  Must  Delivery  be  Made. 

116.  Delivery  According  to  Usage  and  Custom. 

117.  Common  Carrier  a  Bailee  for  Hire. 

118.  Common  Carrier  Likewise  an  Insurer. 

119.  Exceptions  to  his  Liability  as  Insurer. 

120.  The ''Act  of  God." 

121.  Discordant  Decisions. 

122.  Cases  not  Within  the  "Act  of  God." 

123.  The  Question  of  Negligence  Immaterial. 

124.  ''Act  of  God  "  Must  be  Exclusive  Cause. 

125.  Negligence  and  "Act  of  God  "  Concurring. 

126.  Loss  by  "Act  of  God  "  after  Delay. 

127.  Loss  by  "Act  of  God  "  after  Deviation. 

128.  Duty  of  Carrier  to  Preserve  Goods  Damaged  by  "Act  of 

God." 

129.  The  Public  Enemy. 

130.  Losses  Caused  by  Inherent  Defects  in  Goods  Carried. 

131.  Losses  Caused  by  Seizure  under  Process. 

132.  Losses  Caused  by  Act  or  Omission  of  Owner. 

133.  Losses  Caused  through  Fraud  of  Owner. 

134.  Losses  Caused  by  Neglect  of  Owner. 

135.  Owner  Undertaking  Part  of  Carrier's  Duties. 

§  112.  Carrier's  Responsibility  Begins  on  Deliv- 
ery. — As  soon  as  the  goods  have  been  given  into  the 
custody  of  the  carrier,  with  the  charges  paid  or  without 
the  carrier  having  insisted  upon  prepayment,  his  lia- 
bility for  loss  or  damage  at  once  arises,^  and  it  mat- 

1  Grosvenor  v  U.   Co.,  39  N.   Y.   34;  Co.,  51  Ala.  481;  111.  Cent.  R.  R.  Co.  v. 

Brand  r.  Dale,  8  Car.  & r.  207 ;  Maybinr.  Srayser,  38  111.  354 ;  87  Am. Dec. 301 ;  Jnd- 

R.  Co.,  7  Rich,  240;   64  Am.  Dec.  7r.3;  sonv.  R.  Co..  4  Allen,  520;  81  Am.  Dec. 

Fitchburg etc.  R.  Co.  v.  Hanna,  6  Gray,  718;  Railroad  Co.  v.  Barrett,  36  Ohio  St- 

536;  66  Am.  Dec.  427;  O'Bannon  r.  Ex.  452. 

176 


en.  XI.J  KESPONSIBILITY  DURING  TRANSIT. 


§112 


ters  not  that  no  formal  contract  has  been  signed  or  de- 
livered/ or  no  receipt  has  been  given  for  them.- 
Whenever  a  delivery  of  the  goods  has  taken  place,  a 
transfer  of  the  responsibility  takes  place  fit  the  same 
time.  Even  although  the  transit  of  the  goods  may  not 
take  place  immediately,  the  duty  of  the  carrier  is  not 
postponed  until  the  journey  actually  begins.  His 
duty  is  to  keep  safely  and  to  carry  safely.^  But  for 
goods  received  upon  the  premises  of  the  carrier  to 
await  orders  before  transportation,  he  is  liable  as  a 
warehouseman  onlv  until  the  orders  are  received.^  And 
after  the  relation  of  carrier  to  the  goods  has  become 
established  by  their  delivery  to  him  for  immediate 
transportation,  it  may  be  changed  to  that  of  a  ware- 
houseman by  subsequent  orders  by  the  owner  to  delay 
the  for^varding  of  them.''  If  the  shipper  retains  the 
custody  of  the  goods  himself,  or  sends  his  servant  along 
for  that  purpose,  the  carrier's  liability  as  an  insurer 
does  not  attach."  In  such  cases,  the  owner,  so  far  from 
having  made  delivery  to  the  carrier,  has  purposely 
withheld  it.  He  has  not  trusted  the  carrier,  and  where 
there  has  been  no  trust  reposed,  there  is  no  liability ;''^ 
though,  if  the  carrier  have  the  entire  custody  or  con- 
trol of  the  goods,  the  fact  that  the  owner  or  his  ser- 


1  Gulliver  1'.  Adams  Ex.  Co.,  38  111.503; 
Slierman  v.  Steam.  Co.,  26  Hun.  107;  111. 
Cent.  R.  Co.  v.  Smyscr,  38  111.  .S54;  87  Am. 
Dec.  30;  East.  etc.  U.  Co.  v.  Hall,  64  Tex. 
615. 

2  Hickox  V.  R.  Co.,  31  Conn.  281 ;  83  Am. 
Dec.  143. 

3  Clarke  r.  Needles,  25  Pa.  St.  338;  III. 
Cent.  R.  Co.  v.  Smyser,  38111.  354;  87  Am. 
iJuc.  30;  Grand  Tower  etc.  R.  Co.  v.  Ull- 
man,  89  111.  244;  Blossom  v.  Griffin,  3 
Kern.  5G9;  Wade  v.  Wheeler,  47  N.  Y.658; 
Michigan  etc.  R.  Co.  v.  Schutz,  7  Mich. 
615;  Moses  v.  U.  R.  Co.,  24  N.  H.  71;  55 
Am.  Dec. 222. 

4  Barron  V.  Eldredge,  100  Mass.  455;  1 

13 


Am.  Rep.  126;0'Neilf.  R.  Co.,60N.  Y. 
138;  Wade  v.  Wheeler,  3  Laus.  201;  Lit- 
tle Rock  etc.  R.  Co.  v.  Hunter,  42  Ark. 
200. 

6  St.  Louis  etc.  R.  Co.  v.  Montgomery, 
39  111.  335. 

6  East.  India  Co.  v.  Tnllen,  2  Strange, 
690;  Cohen  v.  Frost,  2  Duer.  335;  Tower 
V.  R.  Co.,  7  Hill,  47 ;  42  Am.  Dec.  36 ;  Hollis- 
ter  V.  Nowlen,  19  Wend.  234 ;  32  Am.  Dec. 
455;  Yerkes  v.  Sabin,  97  Ind.  141;  49  Am. 
Rep.  434;  Wyckofl  r.  Ferry  Co.,  62  N.  Y^. 
32;  11  Am.  Rep.  650;  Stone  v.  Wyatt,  81 
Me.  409;  52  Am.  Dec.  621. 

7  Hntch.    Carr.,   §   86. 

177 


9 

7! 


I 

r 

r 


§115 


RESPONSIBILITY  DURING  TRANSIT.         [P.\RT  II. 


viint  accompanies  them  merely  to  have  an  eye  upon 
them,  does  not  relieve  the  carrier  from  responsibility.' 

§  113,  Actual  or  Constructive  Acceptance  Neces- 
sary. — There  must,  however,  be  either  an  actual  or 
constructive  acceptance  by  the  carrier,  or  the  contract 
to  carry  will  not  arise,-  Leavinjjj  goods  on  a  dock, 
without  notice  to  the  carrier;^  or  merely  leaving  goods 
on  a  carrier's  premises;*  or  putting  them  in  a  carrier's 
vehicle  without  his  knowledge;^  or  leaving  them  at  his 
ordinary  place  of  receiving,  at  an  hour  when  he  was 
not  accustomed  to  receive  goods,"  would  not  be  suffi- 
cient. The  reason  is,  that  to  charge  a  carrier  with  tlu' 
loss  of  an  article  which  has  never  come  into  his  posses- 
sion, or  to  hold  him  responsible  for  the  loss  of  an  arti- 
cle of  which  he  has  never  had  an  opportunity  of  taking 
care,  would  be  eminently  unjust.'^ 

§  114.     At  What  Place  Must  Delivery  be  Made. 

— The  delivery  must  be  made  at  the  ordinary  and  usual 
receiving  place  of  the  carrier,-  unless  the  carrier  has 
accepted  them  elsewhere,  as  he  has  a  right  to  do.^ 

§  115.     To  Whom  Must  Delivery  be  Made The 

delivery  may,  of  course,  be  to  the  agent  of  the  carrier.'"' 
Ordinarily,  a  person  in  charge  of  the  place  or  present 
there,  and  acting  as  such,  must  be  presumed  to  have 
authority  to  accept  for  the  carrier,"  unless  such  an  act 


1  Hntch.  Carr.,  §  86. 

2  111.  Cent.  K.  Co.  r,  Smyser,  28  111.  354; 
87  Am.  Dec.  301. 

»  Packard  r.  Getraan,  6  Cow.  757;  IG 
Am.  Dec.  475;  Merriam  r.  U.  Co  -  io 
Conn.  ,H54;  52  Am.  Dec.  344. 

4  IJuckman  t:  Levi,  3  Camp.  414;  Gros- 
venor  v.  R.  Co.,  39  N.  V.  34. 

fi  Leigh  1-.  Smith,  1  Car.  &  P.  6.38. 

«  Hiowne  Carr.,  §  89. 

^  Hrowne  Carr.,  §  90. 

»  Cronkite    r.    Wells,   3i    N'.    Y.    247; 

178 


IJlanchard  r.  Isaacs,  3  Barb.  i588 ;  WnUs 
V.  U.  Co.,  6  Jones,  47 ;  72  Am.  Dec.  556. 

»  Ilntch.  Carr.,  §  87;  Itrowne  Carr.,  §§ 
67,  89;  III.  Cent.  R.  Co.  v.  Smyser,  38  111. 
354 ;  87  Am.  Dee.  301 ;  I'hillips  v.  Earle,  8 
Pick.  182. 

10  Rogers  V.  R.  Co.,  2  Lans.  269;  Oninitt 
1'.  Ilenshaw,  35  Vt.  605;  Minter  v.  R.  Co., 
41  JIo.  505;  97  Am.  Dec.  289. 

u  Cronkite  v.  Wells,  32  N.  Y.  247;  Rog- 
er* i'.  K.  Co.,  2  Lans.,  269;  Ouimet  v. 
Henshaw,  35  Vt.  605;  Whitbeckr.  Schuy- 
ler, 47  Barb.  469. 


CII.  XI.]  KESP0X8IBILITY  DURING  TRANSIT. 


§116 


is  clearly  from  the  scope  of  his  eiuploymeDt  beyond 
his  authority.* 

The  same  rule  applies  to  contracts  made  by  the  car- 
rier's servants  by  which  the  carrier's  responsibility  is 
increased.-  As  common  carriers,  especially  at  the 
present  day,  transact  the  greater  part,  if  not  all  of  their 
business  with  the  public  through  agents  and  servants, 
it  is  proper  that  the  public  shall  have  a  right  to  assume 
that  the}'  are  authorized  to  do  whatever  they  attempt 
to  do.'* 

§  116.  Delivery  According  to  Usage  and  Custom. 

— A  delivery  made  in  accordance  with  an  established 
usage  and  custom  Avill  always  bind  the  carrier;^  even 
had  there  been  no  such  usage,  the  person  would  have 
had  no  authority,"'  or  the  place  would  have  been  an  im- 
proper one,"  or  the  time  an  unreasonable  one."^     But 


>i 


1  As,  for  example,  a  deckhand  of  n 
Bttaniboat.  Trowbridge  r.  Cliapin,  23 
Conn.  595;  Ford  v.  Mitchell,  21  Ind.  54. 

2  Winkfleld  i:  ruckinnton,  2  C.  &  V.  o'.W. 
•1  Myall  V.  U.  Co.,  19  N.  U.  122;Ucy- 

nolda  V.  Topiiiin,  15  Mass.  .S70;  Goodrich 
V.  Thoinpson,  i  Uob.  75;  44  X.  Y.  324; 
Uoddard  c.  Mallory,  52  liarb.  87;]{aU. 
etc.  Steam.  Co.  c.  ISrown,  54  Pa.  St.  77; 
Btrchu  V.  U.  I  o.,  23  Wis.  lliij;  Doming  v. 
K.  Co.,  48  X.  II.  4.55;  ISurnliara  f.  U.  Co., 
63  .Me.  29S;  Lackawanna  etc.  U.  Co.  v. 
Cbencweth,  52  I'a.  St.  ."82;  Hanson  v.  K. 
Co.,  41  N.  W.  Uep.  529;  Wood  v.  R.  Co., 
68  1a.  491;  niikeri-.  R.  Co.,  91  Mo.  153; 
Harrison  v.  K.  Co.,  74  Mo.  364;  Kaston  t'. 
Dooley,  14  S.  W.  Rep.  ,583;  Isaacson  r. 
K.  Co.,  94  N.  Y.  278.  But  see  White  v.  U. 
Co.,  19  Mo.  (App.)  400;  Turner  v.  R.  Co., 
20 Mo. ' App. )  632 ;  Clonrd.  f.  U.  Co.,  14  Mo_ 
App.  136;  Grovcr  ttc.  Co.  r.  11.  Co.,  70 
Mo.  672;  35  Am.  Rep.  444;  Riley  v.  R. 
Co.,  34  Hun.  97;  Klkins  v.  R.  Co.,23N. 
II.  275;  Burroughs  r.  R.  Co.,  100  Mass. 
2G;  Crenshawe  v.  I'earce,  37  Fed.  Rep. 
432;  Law  r.  Botsford,  26  Fed.  Rep.  651 ; 
Haggerty  v.  R.  Co.,  59  Mich.  366;  Mo. 
Puc.  R.  Co.  V.  Stults,  31  Kas.  752.  Where 
s  freight  agent   issues  bills  of  lading 


when  no  goods  were  delivered  the  car- 
rier is  not  liable.  Robinson  v.  R.  Co.,  9 
Fed.  Rep.  129;  16  Fed.  Rep.  57;  Bait.  etc. 
R.  Co.  V.  Wilkens,  42  Md.  11;  ConCr<i 
Brooke  c.  R.  Co.,  2  Kast.  Rep.  125;  Bk.  of 
Baldwin  v.  R.  Co.,  100  X.  Y.  195 ;  Xat.  Bk. 
r.  R.Co.,46X.  W.  Rep.  ;M2. 

•1  Lawson  Usages  and  Customs,  sec. 
79 ;  Ford  v.  Mitchell,  21  lud.  54 ;  I.eiKh  t: 
.Smith,  1  Car.  &  V.  6:tS;  Blanchard  v. 
Isaacs,  3  Barb.  388;  Mcrriain  r.  li.  Co., 
20  Conn.  .S54;  52  Am.  Dec.  .S44  ;  Converse 
J'.  Xorwieh  etc.  Trans.  Co.,  .S:)  Conn.  166; 
Green  r.  R.  R.  Co.,  38 Iowa,  l''0;4i)  Iowa, 
410;  Wright  v.  Caldwell,  3  Mich.  51; 
Packard  r.  Getman,  6  Cow.  759;  O'Ban- 
non  r.  Southern  Exp.  Co.,  51  Ala.  481; 
Illinois  Cent.  R.  R.  Co.  r.  Sniyser,  33  III. 
354;  87  Am.  Dec.  301;  Freeman  i-.  New- 
ton, 3  E.  D.  Smith,  24(J;  Hickox  v.  R.  R. 
Co.,  31  Conn.  281;  83  Am.  Dec.  143;  Cob- 
ban r.  Dowue,  5  Ksp.  41. 

»  Cobban  v.  Downe,  5  Esp.  41 ;  Harwell 
f.  Xorth,  2  C.  cS:  H.  679;  Blanchard  v. 
Isaacs,  3  Barb.  87. 

BMerriamr.  R.  Co.,  20  Conn.  354;  62 
Am.  Dec.  344;  Converse  v.  Xorwieh  etc. 
Trans.  Co., 33  Conn.  166. 

7  Green  v.  R.  Co.,  38  la.  100;  41  la.  410. 

179 


§118 


KKSPONSIBILITY  DITRIXG  TRANSIT.         [PART  II. 


the  delivery  must  have  been  in  strict  accordance  with 
the  usage.' 

§  117.  Common  Carrier  a  Bailee  for  Hire.— A  com- 
mon carrier  of  goods  is  a  bailee;  and  like  othtr  bailees 
for  hire,  a  common  carrier,  is  bound  to  the  exercise  of 
that  care  and  diligence  which  are  usuallv  bestowed  bv 
men  of  ordinary  prudence  in  the  management  of  their 
own  affairs,  and  he  is  liable  for  any  want  of  skill  in  his 
calling.  In  these  respects,  the  common  carrier  differs 
not  from  other  bailees  for  hii'<'.' 

§  118.  Common  Carrier  Lilcewise  an  Insurer.— In 

addition  to  this  general  liability,  the  common  carrier 
is  regarded  as  an  insurer  of  the  property  intrusted  to 
him.  Ilis  insurance  differs  from  other  forms  of  in- 
surance in  the  following  respects:  First.  When  goods 
in  the  hands  of  a  carrier  have  been  lost,  he  can  not  sue 
an  insurance  company  which  had  insured  them  for  the 
owner  for  contribution."*  In  such  case  the  liability  of 
the  carrier  is  primary,  and  that  of  the  underwriter  is 
only  secondary.^  Second.  His  insurance  is  always 
connected  with  the  custody  of  the  goods.''     Third.     In 


1  Thus  n  usage  to  deliver  goods  to  the 
mute  of  a  ship  will  not  miikc  pood  a 
uu'vo  leaviugthem  on  the  wharf  near  the 
ship,  Leigh  v.  Smith,  1  Car.  &  P.  GSS.  A 
usage  that  a  passenger  by  boat  delivers 
his  trunk  to  the  boat  by  placing  it  on 
board  will  not  include  the  delivery  of  a 
trunk  in  that  way  by  one  not  a  passen- 
ger. Wright  V.  Caldwell,  3  Mich.  51.  So, 
where  the  custom  makes  the  placing  of 
goods  on  the  dock  near  the  boat  and  no- 
tice to  the  carrier  a  sufficient  deliveiy  to 
him,  if  more  articles  are  placed  on  the 
Wharf  than  the  carrier  is  notified  of,  he 
will  not  be  jfiiswerable  for  the  excess. 
Packard  v.  Getman,  6  Cow,  757. 

2  Ang.  Carr.,  §  67;  Browne  Carr.,  §  12. 
■I  Gailes  r.  Ilailman,  11  Pa.  St.  515.  The 

caiTier  may  by  contract  with  the  ship- 
per have  the  benefit  of  any  insurance 
the  ehipper  may   have   effected  upon 

180 


them,  mercantile  Ins.  Co.  v.  Calebs,  20 
N.  Y.  173;  Uentonl  v.  U.  Co.,  17  Fed.  Uep. 
90.S ;  Jackson  v.  Ins.  Co.,  1.S9  Mass.  508;  83 
Am.  Hep.  728.  Such  an  agreement  docs 
not  violate  a  statute  forbidding  the  car- 
rier to  limit  his  liability.  British  etc.  Ins. 
Co.  V.  R.  Co.,  63  Tex.  475;  51  Am.  Uep. 
C61. 

HHall  f.  R.  Co.,  13  Wall.  307;  Hart  v. 
Western  R.  Co.,  13  Mete.  99.  A  common 
carrier  who  has  brought  suit  against  a 
wrong -doer  to  recover  for  the  destruc- 
tion of  goods  which  had  been  entrusted 
to  him  for  transportation,  and  has  re- 
covered for  their  amount,  is  liable  to  the 
owner  of  the  goods  for  the  snm  recov- 
ered, and  cannot  rcooup  against  the 
claim  the  expenses  incurred  in  the  liti- 
gation with  the  WTcng-doer.  Hardmaa 
r.  Brett,  37  Fed.  Rep.  808. 

fi  Gailes  V.  Hailman,  supra. 


CII.  XI.]  RESPONSIBILITY  DURING  TRANSIT 


§119 


the  absence  of  contract,  the  immemorial  common  law 
of  England  makes  certain  exceptions  from  the  risks 
assumed  by  the  carrier,  which  are  not  implied  in  other 
forms  of  insurance.  Fourth.  The  insurance  of  the 
carrier  results  from  the  law  applied  to  a  [>.ivticular  re- 
lationship, and  not  from  a  special  contract  to  insure.^ 

§  119.    Exceptions  to  his  Liabil.   y  as  lnsni';r. — 

Genrrally,  the  common  carrier  is  liable  fo'-  1ut.'ses  pro- 
ceeding^ from  causes  whi  h  are  wholly  l»eyond  his  con- 
trol, and  which  he  could  neither  provide  against  nor 
foresee.  But  he  is  not  liable  for  an3'  loss  or  damage 
to  goods  in  his  hands  caused  wholly  either  by  the  act 
of  God  or  the  "king's  enemies,"  that  is,  the  public  en- 
emy. It  is  said  that  the  reason  for  these  exceptions 
is  that  the  causes  of  loss  thus  excepted  are  so  notorious 
that  they  are  easily  proved  or  disproved.^  Other 
causes  of  loss  might,  however,  be  equally  notorious; 
and  other  reasons  for  the  exceptions  might  be  sug- 
gested. The  difficulty  of  compensating  the  tremend- 
ous losses  growing  out  of  public  war  is  suiHciently  ob- 
vious; and  it  is  known  that,  in  an  earlier  age,  losses 
caused  by  lightning,  tempest,  earthquake,  or  any 
other  of  the  more  appalling  phenomena  of  Nature,  were 
regarded  as  the  judgments  of  Heaven,  which  should  be 


1 "  His  second  responsibility,  which 
arises  npon  rcasono  of  policy,  is,  that 
be  carries  the  goods  npon  a  contract  of 
insarance.  This  policy  has  fixed  the 
latter  liability  upon  common  carriers  by 
land  and  water,  not  becanso  they  hold 
themselves  out  to  carry  for  all  persons 
indifferently;  if  that  were  all,  there 
would  be  no  gronnd  for  the  policy,  it 
wonld  be  without  reason ;  many  other 
persons  bold  themselves  out  to  act  in 
their  trade  or  business  for  all  persons 
Indifferently  who  will  employ  them,  and 
the  policy  in  question  is  not  applied  to 
such  trades ;  the  policy  is  applied  to  the 
trade  of  common  carriers  because  when 


the  common  law  adopted  that  policy, 
the  business  of  common  carriers  in  Eng- 
land was  exercised  in  a  particular  man- 
ner and  subject  to  parilo  ilar  conditions 
which  called  for  the  adoption  of  that 
policy."  Brett,  J.,  in  Nugent  v.  Smith, 
L.  n.  1  C.  p.  D.  19,  423. 

2  Lord  Holt  in  Coggs  v.  Bernard,  2  Ld. 
Raym.  909 ;  Best,  C.  J. ,  in  Riley  r.  Home, 5 
Bing.217 ;  Forward  v.  Pittard.l  Term. Rep. 
27;  Thomas  v.  R.  Co.,  10  Mete.  472;  Spen- 
cer, J.,  in  Roberts  v.  Turner,  12  Johns. 
232;Holli8terr.  Xowlen,  19  Wend.  234; 
Elkins  V.  R.  Co.,  23  N.  H.  275;  Moses  v. 
R.  Co.,  24  N.  H.  71;  Rixford  v.  Smith,  62 
N.  H.  355. 

181 


^ 


•rf 


§120 


RESPONSIBILITY  DURING  TRANSIT.         [PART  II. 


allowed  to  rest  where  they  fell.*  At  the  present  time, 
the  action  of  the  Deity  is  as  much  recognized  in  the 
most  quiet  operation  of  nature  as  in  the  most  violent; 
but  it  is  important  to  be  remembered  that  in  the  law 
of  carriers,  Ihe  phrase  "the  act  of  God"  remains  true  to 
its  original  meaning. 

The  maxim  that  common  carriers  are  liable  for  all 
losses  excepting  those  caused  by  the  act  of  God  or  by 
the  public  enemy,  is  convenient  enough  for  common 
use;  but  on  a  closer  examination  it  will  be  found  to  be 
inaccurate,  aud,  hence,  to  some  extent,  misleading.^ 
More  correctly,  it  may  be  said,  that  the  carrier  is  not 
liable:  First.  For  losses  caused  by  the  act  of  God. 
Second.  Losses  caused  by  the  public  enemy.  Third. 
Losses  caused  by  the  inherent  defect,  quality,  or  vice 
of  the  thing  carried.  Fourth.  Losses  caused  by  the 
seizure  of  goods  or  chattels  in  his  hands,  under  legal 
process.  Fifth.  Losses  caused  by  some  act  or  omis- 
sion of  the  owner  of  the  goods. 

With  these  exceptions  the  liability  of  the  carrier  is 
unconditional.  To  hold,  otherwise,  it  is  said,  would 
be  to  afford  opportunities  for  collusion  between  car- 
riers and  robbers  or  thieves,  and  to  open  a  way  for  false 
pretences  on  the  part  of  carriers  which  could  not  be 
disproved.^ 

§  120.  "The  Act  of  God."— In  a  late  English  case 
Mr.  Justice  Brett  said:  "The  definition  to  be  extracted 
from  all  the  cases  is  said  to  be  given  in  a  note  on  Cofjfjfi 
V.  Bernard,  in  the  American  edition  (by  Mr.  Wallace), 
of  Smith's  Leading  Cases.     The  best  form  of  the  deflni- 


1  "Let  ns  take  the  case  of  the  Christian 
thinker  some  centuries  back.  His  creed 
being  that  the  Deity  created  and  or- 
dained all  things,  ncvci'thelesB,  when 
he  burnt  hia  linger,  the  cause  of  the 
burn  he  attributed  to  the  fire,  and  not 

182 


to  God;  bat  when  the  tbnnder  muttered 
in  the  sky,  he  attributed  that  to  no  canse 
but  God."  Lewea'  Hist.  Philo6.,vol,  I. 
p.  123. 

!i  See  Hall  v.  Rentro,  3  Mete.  (Ky.)  61. 

3  See  cases  cited,  post. 


, 


en.  XI.]  EESPONSIBILITY  DURING  TRANSIT. 


§120 


tlion  seems  to  us  to  be  that  the  damage  or  loss  in  ques- 
tion must  have  been  caused  directly  and  exclusively 
by  such  a  direct  and  violent  and  sudden  and  irresistible 
act  of  Nature  as  the  defendant  (carrier)  could  not  by 
any  amount  of  ability  foresee  would  happen;  or,  if  he 
could  foresee  that  it  would  happen,  could  not  by  any 
amount  of  care  and  skill  resist  so  as  to  prevent  its 
effect."^  This  definition  is  susceptible  of  being  mis- 
u\Qderstood.  The  phrases  "any  amount  of  ability',"  and 
"any  amount  of  care  and  diligence,"  might  be  supposed 
to  erect  a  standard  so  high  that  few  could  reach  it, 
and  which  no  one  could  transcend.  It  is,  perhaps, 
needless  to  say  that  the  law  does  not  exact  from  all 
men,  of  any  class,  qualities  which  are  so  rare  as  to  be 
almost  unknown.  We  have  seen  that  the  law  requires 
only  reasonable  skill  and  reasonable  diligence;  but 
these  are  rigidly  demanded.-  Of  course,  the  exact 
measure  of  the  skill  and  diligence  required  can  be  de- 
termined only  by  the  degree  of  the  delicacy  and  im- 
portance of  the  duties  assumed  in  each  particular  case. 
AVith  this  explanation,  the  definition  thus  given  may 
be  accepted  as  being  a  correct  exposition  of  the  law 
both  in  England  and  America. 

In  order  to  excuse  the  carrier,  the  act  of  Nature  must 
have  been  violent;  such  as  lightning,  tempest,*  or 
oarthquake,"  or  an  extraordinary  Hood."  The  driving 
of  a  boat  against  a  bridge-pier  hy 


a  sudden  gust  of 


J  Nugent  r.  Smith,  L.  R.  1  C.  P.  Div.l9 
(lSTr));15EnK.  llc]>.,  Moak's  Notes,  203; 
s.  c.lC.  P.  Div.  423. 

i  Ante,  §11  Edwards  on  Bail.,  §  454. 
The  deilDitioD  given  by  Mr.  Wallace  is 
substantially  similar  to  that  given  by 
Brett,  J.  1  Smith's  Ld.  Cas.  .B15.  See, 
also,  Klanber  V.  American  Express  Co., 
21  Wis.  21 ;  Friend  v.  Woods,  6  Gratt.  1S9. 

3  Forward  v.  Pittard,  1  Term  Rep.  27. 

4  Gillett  r.  Ellis,  11  111.  S79. 

K  Slater  t).  U.  Co.,  6  S.  E.  Rep.  9.S6. 


6  Read  r.  Spaulding,  5  Bosw.  395; 
Nashville  etc.  R.  Co.  v.  David,  6  Heisk. 
2(il ;  Wallace  r.  Clayton,  42  Ga.  443;  Lev- 
ering t'.  Buck  Mountain  Coal  Co.,  54  Pa. 
St.  2'Jl ;  Lamout  v.  Nashville  etc.  R.  Co., 
9  Ueisk.  58.  A  flood  in  a  river  over  which 
a  railroad  crosses  is  the  act  of  God. 
Norris  f.  R.  Co.,23Fla.  182;  Davis  r.  R. 
Co.,  13  Mo.  (App.)  449;  89  Mo.  340;  Nash- 
ville etc.  R.  Co.  V .  David,  6  Heisk.  261 ;  19 
Am.  Rep.  594. 

183 


5^ 

r- 


i  V! 


§121 


RESPOJVSIBILITY  DURING  TRANSIT.         [PART  II. 


wind/  the  freezing  of  navigable  waters,-  a  snow-storm 
which  blocks  up  a  railway,^  or  the  freezing  of  fruit 
trees  which  are  being  transported,*  have  all  been  re- 
garded as  cases  falling  within  this  exception.  So  have 
a  high  wind,  strong  enough  to  blow  heavy  goods  from 
an  open  car,^*  and  the  sliding  of  a  natural  hill  upon  a 
railroad  track.*^ 

§121.  Discordant  Decisions. — Sir  William  Jones 
piously  objected  to  the  use  of  the  phrase  "the  act  of 
God,"  as  being  irreverent,  and  proposed  to  put  that  of 
"inevitable  accident"  in  its  stead,  intending,  appar- 
ently, to  give  the  same  restricted  meaning  to  the  lat- 
ter phrase  as  had  been  given  to  the  former.'^  Some 
of  the  courts  have  been  misled  by  this  suggestion;  and 
have  supposed  that  a  common  carrier  is  not  liable  for 
any  loss  which  he  could  not  foresee  or  prevent,  except- 
ing, it  would  seem,  all  losses  caused  directly  by  human 
means — as  by  thieves  and  robbers.^  In  some  of  the 
cases,  the  phrase  "the  act  of  God"  has  been  used  so 
vaguely  that  it  is  not  easy  to  ascertain  that  any  pre- 
cise meaning  was  attached  to  it."  Other  cases  are 
more  explicit,  without  being  more  satisfactory.  Thus, 
in  Connecticut,  it  was  held  that  the  loss  of  a  vessel  by 
ruiining  on  a  rock  not  generally  known,  and  not  known 
to  the  master,  was,  prima  facie,  a  loss  by  the  act  of  God. 
The  decision  was  unnecessarj',  as  the  bill  of  lading 
contained  an  exception  of  all  losses  by  "dangers  of  the 


1  Germania  Ins.  Co.  r.  The  Lady  Pike, 
17  Am.  Law.  Rep.  C14. 

2  Parsons  v.  Hardy,  14  Wend.  215; 
Harris  f.  Rand,  4  N.  H.  259;  Wallace  r. 
Vigiis,  4  Blackf.  260 ;  West  v.  The  Berlin, 
3  Iowa  632;  The  Maggie  Hammond,  9 
Wall.  435;  Worth  v.  Edmonds,  62  Barb. 
40. 

3  Ballentine  v.  R.  Co.,  40  Mo.  491. 

4  Vail  V.  R.  Co.,  63  Mo.  230. 

184 


«  Miltimorc  v.  R.  Co,,  37  Wis.  190. 

6  Gleeson  v.  R.  R.  Co.,  6  Mackey,  366. 

7  Jone*  Bail.,  §§104, 106. 

8  Xcal  V.  Sannderson,  2  S.  &  M.  672; 
Walpole  r.  Bridges,  6  Blackf.  222. 

9  Robertson  r.  Kennedy,  2  Dana,  430; 
Sprowl  f.  Kollar,  4  Stew.  &  P.  682;  Fish 
V.  Chapman,  2  Ga.  .S49;  overruled  in  Cen- 
tral Line  r.  Lowe,  50  G a.  509;  Lewis  v. 
Lndwick,  6  Coldw.  368. 


.u^-— jiLa--^ 


CH.  XI.]  RESPONSIBILITY  DURING  TRANSIT. 


§121 


VI 


sea/'^  But  in  a  later  case,  the  same  court  held  that 
this  latter  exception  did  not  vary  the  common-law  lia^ 
bility  of  the  carrier.-  So,  it  has  been  held  that  ^ho 
sinking  of  a  boat  by  a  snag,  without  negligence,  is 
within  the  exception  of  the  act  of  God.''  In  South 
Carolina,  it  was  held,  in  an  early  case,  that  carriers 
hi/  water,  were  not  liable  for  accidents  against  which 
ordinary  foresight,  care,  skill  and  diligence  could  not 
provide.^  Of  this  curious  case,  the  same  court  after- 
wards said  that  "it  was  fortunately  forgotten  in  the 
long  sleep  of-  thirty-two  3'ears  before  publication,''""* 
during  which  time  it  had  been  unconsciously  over- 
ruled." In  Tennsylvania  it  was  held  that  any  mis- 
fortune or  accident  that  could  not  be  averted  by  the 
skill  and  prudence  of  the  carrier  was  within  this  ex- 
ception.^ In  Indiana,  there  is  an  intimation  of  the 
same  kind.''  In  Delaware,  it  was  held  that  if  a  vessel 
strike  on  a  rock  not  hitherto  known,  and  not  laid  down 
on  any  chart,  the  master  is  not  liable."  In  one  case, 
the  court  held  that,  in  order  for  the  act  of  Nature  to  fall 
within  the  exception  of  the  act  of  God,  it  need  not  be 
violent — as  where  a  vessel  was  caused  to  drift  against 
the  shore  by  a  sudden  lull  in  the  wind.**'  The  court 
was  misled  into  using  the  conceptions  and  language  of 
theology,  in  place  of  those  of  the  law.     These  discord- 


1  Williams  v.  Grant,  1  Conn.  48". 

2  Crosby  v.  Fitch,  12  Conn.  410.  Hut 
in  IIulc  V.  Xl'w  Jersey  Steam  Nav.  Co., 
15  Conn.  539,  a  plain  distinction  was  m.'ule 
between  the  act  of  God  and  inevitable  ac- 
cident. 

3  Faulkner  v.  Wright,  Rico  107.  There 
is  a  dictum  of  a  similar  import  in  Moses 
V.  Norris,  4  N.  H.  304,  but  it  is  overruled 
by  Hall  v.  Cheney,  36  N.  II.  26,  and  Hack- 
ettr.  R.  Co.,35N.  n.  390. 

4  Everleigh  ti.  Sylvester,  2  Brev.  178. 
*  McClenaghan  i'.  IJrock,  5  Rich.  17. 

«  Harrington  v.  Lyles,  2  Nott.  &  M.  88. 
Tet  its  authority  was  seemingly  recog- 


nized in  Steamboat  Co.  f.  Bason,  Harp. 
262  (1824).  But  it  w.. .  dissented  from  in 
T'litton  V.  Magrath,  Dudley,  150,  and  wus 
distinctly  overruled  in  Mc(^lenaghan  r. 
Brock,  supra,  which  probably  overrules 
Smyrl  i".  Niolon,  2  Bailey,  421. 

1  See  a  long  and  loose  o{  inion  to  this 
effect,  by  Lowrie,  C.  J.,  in  Hays  r.  Ken- 
nedy, 41  ra.  St.  378. 

8  Walpole  r.  Bridges,  5  Blackf.  222, 
and  see  Seligman  i\  Amijo,  1  N.  SIex.469. 

9  Tennewill  r.  Cullen,  5  Harr.  238. 

10  Colt  f.  McMechen,  6  Johns,  160  j  5 
Am.  Dec.  200. 

185 


be 


If 


in 

'.X ; 


i| 


§122 


KESPONSIBILITY  DURING  TRANSIT.         [PART  II. 


ant  decisions  have  been  often  criticised  and  con- 
demned.^ It  may  be  remarked  of  tliem  that  they  are 
for  the  most  part,  not  recent,  and  that  all  of  them, 
with  one  exception,-  relate  to  carriers  by  water — dimly 
foreshadowing  the  statutory  relaxations  that  have 
been  made  in  favor  of  that  class  of  carriers  in  the  gen- 
eral interest  of  commerce,  and  because  goods  sent  by 
water  are  more  commonly  insured  than  those  sent  by 
land;  as  carriers  of  the  former  class  frequently  lose  all 
their  means  for  paying  for  any  loss  to  goods  intrusted 
to  them,  by  the  same  accident  by  which  that  loss 
occurs.^ 

§  122.    Cases  Not  Within  the  "Act  of  God."— A 

loss  from  Are  (not  caused  by  lightning,*)  or  by  the  burst- 
ing of  the  boiler  of  a  steamer,^  or  by  heat,"  or  by  an 
unseen  obstruction  in  navigation,^  or  by  collision  not 
caused  by  tempest,**  or  by  the  burning  of  a  ship  by  the 
bursting  of  a  cask  of  chloride  of  lime,  though  such  an 
occurrence  had  never  been  previously  known,"  or  by 
the  sinking  of  a  vessel  by  running  on  a  piece  of  timber 


1  Per  Lc  Grand,  J.,  in  Fergrusson  r. 
Brent,  12  Mil.  9;  Parsons  r.  Monteiith,  13 
IJarb.  353  ;  Central  Line  v.  Lowe,  50  Ga. 
609.  Note  of  Mr.  Wallace  to  Coggs  v. 
Bernard,  1  Smith's  Ld.  Cas.  315. 

2  Walpole  V.  Itridges,  supra. 

3  The  statutory  restrictions  on  the 
liabilities  of  carriers  by  water  are  con- 
tained in  U.  S.  Uev.  Stats.  §§  4282-4289 ;  see 
Wheeler  Carr.  Caps  II,  III.  For  a  sketch 
of  the  history  ,f  statutes  of  this  kind,  see 
Norwich  etc.  Trans  Co.  v.  Wright,  13 
Wall.  104. 

■•  Thorogood  v.  Marsh,  1  Gow,  N.  P.  C. 
lOS;  Forward  v.  Piftard,  1  Term.  Rep.  27; 
Hyde  V.  Trent  Navigation  Co.,  5  Term. 
Uep.  389;  Moore  v.  11.  Co.,  8  Micb.  23; 
Cox  V.  Peterson,  30  Ala.  608;  ChevaUler 
r.  Straham,  2  Tex.  115;  Miller  v.  Steam 
Navigation  Co.,  10  N.  V.  431 ;  Parsons  v. 
Montcath,  13  Barb.  353 ;  Hull  v.  Cheney, 
36  N.  n.  26;  Patton  t-.  Magrath,  Dud.  (S. 

186 


('.)  ir)!);31  Am.  Dec,  ri."i-' ;  (Iilniore  r.  (Jar- 
man,  1  Smedes  &  M.  279;  40  Am.  Dec.  96. 
The  great  fire  of  Chicago  not  the  "act  of 
God"  ClHcago  etc.  K.  U.  Co.  v.  Sawyer, 
69  111.  285;  18  Am.  Rep.  613.  Contra, 
Hunt  f.  Morris,  6  Mart.  (La.)  676;  12  Am. 
Dec.  489. 

s  McCall  V.  Brock,  6  Strobh.  119;  Nav- 
igation Co.  f.  Dwyer,  29  Te.x.  376;  Bulk- 
ley  r.  Naumkeag  Cotton  Co.,  21  How. 
386;  The  Edwin,  1  Spragne,  477;  The 
Mohawk,  8  Wall.  153. 

«  Beard  f.  R.  Co.,  44  N.  W.  Rep.  800. 

1  Brousseau  t<.  The  Hudson,  11  La.  An. 
427;  Sinyrl  v.  Niolon,  2  Bail.  421;  23  Am. 
Dec.  146 ;  Steele  v.  Taylor,  31  Ala.  667;  70 
Am.  Dec.  516. 

8  Pluistcd  f.  Boston  Steam  Navigation 
Co  ,  27  Mo,  132;  Mershon  t>.  Hobensack, 
22  N.J.  (Law)  372. 

9  Bronsseau  i-.  The  Hudson,  Mtpra. 


IMHi 


i 


f'i' 


CII.  XI.]  RESPONSIBILITY  DURING  TRANSIT. 


§124 


not  visible  in  ordinary  tides,^  or  by  the  stranding  of 
a  vessel  on  a  newly-formed  and  previously  unknown 
bar  in  a  river,"  or  by  the  shifting  of  a  buoy,^  have  all 
been  held  as  not  falling  within  this  exception,  though 
in  each  case  the  carrier  was  without  fault. 

§  123.      Question   of  Negligence    Immaterial. — 

The  question  of  negligence  is  wholly  irrelevant;  for, 
if  the  loss  does  not  fall  within  an  exception  recognized 
by  law,  the  carrier  is  responsible  for  it,  although  he 
exercised  every  possible  diligence  to  prevent  it.^  This 
is  only  to  say  that  the  carrier  is  an  insurer. 

§  124.    "Act  of  God"  Must  be  Exclusive  Cause.— 

The  loss  must  be  caused  directly  and  exclusively  by  the 
act  of  God,  or  else  the  carrier  will  be  liable.^     If  divers 


1  Ne^  Brnnswick  Steam  Navigation 
Co.  V.  Tiers,  24  N.  J.  (L.)  697. 

2  Friend  v.  Woods,  6  Gratt.  189. 

•1  Heaves  t'.  Waterman,  2  Spears,  197, 
Kvans  and  Wardlaw,  JJ.,  dissenting. 

4  Trent  Navigation  Co.  v.  Wood,  4 
Dongl.  287;3  Esp.  131;  Siordet  v.  Hall,  4 
Bing.  607;  Clark  v.  Barnwell,  12  How. 
272;  Ewartv.  Street,  2  Bailey  157;  riing 
v.  Shepherd,  3  Story  349;  Agnew  r.  The 
Contra  Costa,  27  Cal.  425;  Stephens  etc. 
Trans.  Co.  v.  Tackerman,  83N.  J.  543; 
Chcvallier  v.  Stiaham,  2  Tex.  115;  Al- 
bright r.  Penn,  14  Tex.  290;  Parsons  v. 
Monteath,  13  Barb.  363;  McHenryj».  R. 
Co.,  4  Harr.  448;  Hays  v.  Kennedy,  41  Pa. 
St.  378;  Merritt  t'.  Karle,  31  Barb.  38; 
Merritt  v.  Earle,  29  N ,  Y.  115 ;  Forward  v. 
PittarcMTerm  Rep.  27;  Mershon  v.  Ho- 
bensack,  22  N.  J.  372;  Backhouse  v. 
Sneed,  1  Mnrph.  173;  Kagle  v.  White,  6 
Whart.  505;  37  Am.  Dec.  434;  Davis  v, 
Wabash  etc.  R.  Co.,  89  Mo.  .S40;  Schiet- 
felin  I'.  Harvey,  6  Johns  170;  6  Am. 
Dec.  206;  Craig  y.  Childress,  Peck.  170; 
14  Am.  Dec.  761;  Daggett  v.  Shaw,  3  Mo. 
264;  25  Ara.  Dec.  439;  Robertson  v.  Ken- 
nedy, 2  Dana  43;  26  Am.  Dec.  466;  Par- 
sons t'.  Hardy,  14  Wend.  215 ;  28  Am.  Dec. 
521 ;  Gilmore  v.  Gorman,  1  Smedes  &  M. 
279;  40  Am.  Dec.  97;  Nealr.  Sannderson, 


2  Smedes  &  M.  572;  41  Am.  Dec  609; 
Lewis  V.  Ludwick,  Cold.368;98  Am.  Dec. 
454 ;  I'arker  v.  Flagg,  26  Me.  181 ;  45  Am. 
Dec.  101;  Fish  v.  Chapman, 2  Ga.  349;  46 
Am.  Doc.  393;  Norway  Plains  Co.  r.  R. 
R.  Co.,1  Gray,263;61  Am.  Dec.  423;  New 
Brunswick  Steam.  Co.  r.  Tiers,  24  N.  J. 
L.  697;  64  Am.  Dec.  395;  Cox  v.  Peterson, 
30  Ala.  608 ;  68  Am.  Def..  145 ;  Ferguson  v. 
Brent,  12  Md.  5;  71  Am.  Dec.  582;  Bo- 
hannan  v.  Hammond,  42  Cal.  227;  Welsh 
r.  R.  R.  Co.,  10  Ohio  St.  65;  76  Am.  Dec. 
490;  Bennett  v.  Byram,  38  Miss.  17;  75 
Am.  Dec.  90;  Arnold  v.  Jones,  26  Tex. 
335;  82  Am.  Dec.  617;  Hooper  v.  Wells, 
27  Cal.  11;  85  Am.  Dec.  211;  Bland  v. 
Adams  Exp.  Co.,  1  Dnvall,  232;  85  Am. 
Dec.  623 ;  Read  v.  Spaulding,  30  N.  Y.  630 ; 
86  Am.  Dec.  426;  Michaels  r.  R.  R.  Co.,  30 
N.  Y.  664;  86  Am.  Dec.  415;  Southern 
Exp.  Co.  V.  Newby,  36  Ga.  635;  91  Am. 
Dec.  783;  Mobile  etc.  R.  R.  Co.  r.  Hop- 
kins, 41  Ala.  486;  94  Am.  Dec.  607;  Wolf 
f.  Am.  Exp.  Co.,  43  Mo.  421 ;  97  Am.  Dec. 
407;  Buckland  v.  Ad.  Ex.  Co.,  97  Mass. 
124;  93  Am.  Dec.  18. 

ssprowl  V.  Kellar,  4  Stew.  &  P.  882; 
Ewart  V.  Street,  2  Bailey  157;  King  v. 
Shepherd,  8  Story,  249;  Abb.  on  Shipp. 
815;  Michaels  v.  R.  Co.,  30  N.  Y.  564;  86 
Am.  Dec.  415. 

187 


O 

"JO 

CO 


I 

ii'!' 

Ill 'I 


^•.i 


§125 


RESPONSIBILITY  DURING  TRANSIT.         [PART  II. 


causes  concur  in  the  loss,  the  act  of  God  being  one,  but 
not  the  immediate  or  proximate  cause,  the  carrier  is  not 
discharged;*  as,  where  a  vessel  grounds  in  a  storm,  the 
officers  and  crew  being  misled  by  the  absence  of  a  cus- 
tomary light,  and  the  presence  of  a  misguiding  light.' 
So  the  carrier  is  not  excused  from  liability  for  a  loss 
by  the  act  of  God  operating  upon  an  unseaworthy  ves- 
sel, when  such  act  would  have  proved  harmless  to  a 
seaworthj'  vesseh^  A  carrier  is  responsible  for  injuries 
to  perishable  goods  by  cold,  where  due  care,  in  view  of 
all  the  circumstances,  was  not  taken  to  protect  then*  * 
Non-performance  of  a  contract  is  not  excused  by  V.  e 
act  of  God,  where  it  may  be  substantially  carried  into 
effect,  although  the  act  of  God  makes  a  literal  and  pre- 
cise performance  of  it  impossible.'"' 

§  125.    Negligence  and  Act  of  God  Concurring.— 

Where  the  loss  is  caused  partly  by  negligence  and 
partly  by  the  act  of  God,  the  carrier  is  liable;"  as  where 
a  master  of  a  vessel  fills  her  boilers  over  night  to  be 
ready  for  starting  in  the  morning,  and  a  pipe  freezes 


1  Xew  Urunswick  Steamboiit  Co.  v. 
Tiers,  24  N.J.  (L.)  697. 

2  McArthnr  v.  .''eors,  21  Wend.  ]90. 

3  Packard  r.  Taylor,  35  Ark.  482;  37 
Am.  Rep.  37. 

4  Wing  V.  R.  Cc,  1  Hilt,  2.S5. 

«  Williams  v.  Vanderbilt,  .S8  N.  Y.  217; 
84  Am.  Dec.  334. 

8  Lyon  V.  Mells,  5  East.  428;  Davis  v. 
Garrett,  3  IJing.  716;  Birkett  v.  Willan, 
2  B.  A  Aid.  356 ;  Bodcnham  &  Bennett,  i 
Price  31;  Smith  v.  Home,  2  Moore  18; 
Powell  V.  Layton,  2  Bos.  &  Pnll.  (NT.  E.) 
365;  Siordet  v.  Hall,  4  Bing.  607;  Muddle 
V.  Stride,  9  C.  &P.  ,S80;  Lowe  r.  Booth,  13 
Price,  329;  Becktord  v.  Cmtwell,  5  C.  & 
P.  242;  Cailiff  v.  Danvres,  1  Peake  155; 
Hnnter  t).  Potts,  4  Camp.  203;  Oakley  v. 
Steam  Packet  Co.,  U  Kx.  618;  Laveroni 
V.  Drury,  8  Ex.  166;  HoUingworth  v. 
Brodrick,  7  Ad.  &  E.  40;  Dibble  v.  Mor- 
gan, 1  Woods,  406;  Elliott  v.  Rossell,  10 

188 


Johns.  1;  Armentront  r.  St.  Lonia  etc. 
R.  Co.,  1  Mo.  (App. )  158;  Prnitt  v.  Hanni- 
bal etc.  R.  Co. ,  62  Mo.  527 ;  Davis  v.  R.  Co. , 
89  Mo.  340.  A  carrier  failed  to  deliver 
promptly  certain  fmit  trees  because,  of 
high  water,  rendering  a  part  of  its  ir.j 
impassable,  whereby  the  trees  wor-. 
when  received  dead;  but  ho  did  not  show 
that  lie  could  not  have  sent  them  over 
another  line.  Held,  that  the  loss  was 
not  occasioned  by  the  act  of  God,  and 
the  carrier  was  liable  therefor.  Chi- 
cago etc.  R.  Co.  r.  Manning,  37  N.  W. 
Rep.  462  (Neb.).  Where,  from  the  plaint- 
ifif's  own  evidence,  it  appears  that  the 
act  of  God  caused  the  injury  to  the 
goods,  the  carrier  is  exonerated  from 
liability,  unless  plaintiff  shows  the  car- 
rier was  guilty  of  some  specific  negli- 
gence which  co-operated  to  produce  the 
loss.    Davis  V.  B.  Co.,  89  Mo.  S40. 


i-.. 


CII.  XI.]  RESPONSIBILITY  DURING  TRANSIT. 


§126 


\ 


and  bursts  in  the  night,  though  it  was  customary  to  fill 
the  boilers  of  outgoing  vessels  over  night  ;^  or  where  he 
has  been  guilty  of  any  previous  misconduct  by  which 
the  goods  in  his  charge  are  exposed  to  the  act  of  God, 
and  are  injured  thereby.-  It  is  negligence  for  a  ferry- 
man to  start  across  a  river  when  a  dangerous  wind  is 
blowing,^  or  for  a  wagoner  to  start  across  a  stream  with 
an  insufficient  team;*  and  a  loss  subsequently  occur- 
ring by  reason  of  the  wind,  or  the  sudden  rising  of  the 
stream,  will  not  be  excused.  But  where  there  is  a  loss 
by  the  act  of  God,  the  carrier  will  not  be  held  liable 
on  a  showing  that  there  was  a  defect  in  his  vessel,  or 
a  want  of  skill  on  his  part;  n  must  also  be  made  to 
appear  that  this  defect  or  want  of  skill  contributed 
to  the  loss.""' 

§  126.  Loss  by  Act  of  God  After  Delay.— Where 
there  is  a  loss  by  the  act  of  God  after  a  negligent  de- 
lay by  the  carrier,  the  cases  are  not  uniform  as  to  the 
liability  of  the  carrier.  Mr.  Browne  says:"  "So,  if  he 
(the  carrier),  delays  an  unreasonably  long  time  on  the 
journey,  and  it  is  proved  that  but  for  such  unreason- 
able waste  of  time  he  would  have  been  able  to  deposit 
his  goods  in  safety,  it  will  not  be  a  good  defense  to  an 
action  for  the  amount  of  injury  done  to  the  goods  of  an 
owner,  who  entrusted  them  to  him  to  be  carried,  to 
say  that  the  injury  was  caused  by  a  flood,  which  was 
the  act  of  God."     This  doctrine  is  followed  in  New 


1  Siordet  v.  null,  4  liing.  607. 

2  Uart  r.  Allen,  2  Watts  115;  Williams 
f.  Grant,  1  Conn.  487;  Morgan  r.  Dibble, 
29  Tex.  107;  Chevallier  v.  Straham,  2 
Tex.  115;  Klanber  v.  Am.  Ex.  Co., 21  Wis. 
21 ;  Cook  V.  Gonrdin,  2  Nott.  &  M.  19. 

3  Cook  V,  Gonrdin,  ffupra. 

4  Loomis  V.  Pearson,  Harp.  470.  A  car- 
rier attempted  to  cross  a  fording-place 
in  a  creek,  between  snnset  and  dark, 
while  ft  shower  was  approaching,  with- 
ont  examining  the  state  of  the  ford,  and 


the  wheels  of  his  wagon  stuck  fast,  and 
the  water  rose  with  extraordinary  sud- 
denness, so  as  to  injure  the  goods  in  the 
wagon.  Held,  that  he  was  liable  for  the 
damage  thus  caused.  Campbell  v.  Morse, 
Harp.  468. 

8  Ilart  V.  Allen,  3  Watts  115,  overruling 
Bell  V.  Ueed,4 Binn.  127 ;  New I>runBwick 
Steam  NaTigation  Co,  r.  Tiers,  24  N.  J. 
(L.)61)7. 

6  Browne  Carr.  §  98. 

189 


a 


"JO 
CO 


bo 


;■'■ 


■i'l. 


§127 


RESPONSIBILITY  DURING  TRANSIT.         [PART  11. 


York  and  other  States.^  But  it  is  held  by  the  Supreme 
Court  of  the  United  States,  and  in  Pennsj'lvania,  Mas- 
sachusetts and  Nebraska,  that  in  such  case  the  negli- 
gence of  the  carrier  is  not  the  proximate  cause  of  the 
loss  and  that  he  is  not  answerable  for  it." 

§  127.  Loss  by  Act  of  God  After  Deviation.— De- 
viation is  the  voluntary  departure  from  the  voyage  or 
route  without  necessity  or  reasonable  cause."''  Neces- 
sity can  alone  sanction  it  in  any  case,  and  then  it  must 
be  strictly  commensurate  with  the  vis  major  producing 
it.^  If  a  master  deviates  from  the  usual  course  of  his 
voyage,  and  damage  is  caused  by  a  tempest,  in  itself 
the  act  of  God,  the  proximate  cause  of  the  loss  is  the 
wrongful  act  of  the  master,  and  he  is  responsible  for 
it.°  The  same  rule  applies  to  carriers  by  land.''  If  a 
carrier  has  agreed  to  send  goods  by  land,  and  he  sends 
them  by  water,^  or,  if  he  has  agreed  to  carry  them  by 


1  Read  r.  Hpaulding,  30  X.  Y.  C30,  dis- 
seuting  from  Morrison  v.  Davis,  20  Pii.  St. 
171;  Denison  v.  R.  Co.,  3  Lans.  265; 
Michaels  i-.  U.  Co.,  30  N.  Y.  564;  80  Am. 
Dec.  415;  Hewitt  i'.  li.  Co.,  63  la.  6U ; 
McGrawr.  It.  Co.,  18  W.  Va.  361;  41  Am. 
Rep.  696. 

2  Morrison  r.  Davis,  supra;  Railroad 
Co.  V.  Reeves,  10  Wall.  176;  Denuy  r.  R. 
Co.,  13  Gray,  481;  lloadley  r.  Xortlieni 
Trans.  Co.,  115  Mass.  304;  McClary  v.  B. 
Co.,  3  Neb.  44.  See  Mich.  etc.  R.  Co. 
V.  Burrows,  33  Mich.  6. 

3  Bond  t'.The  Cora,  2 1'et.  .Vdm.  373 ;  Mary- 
land Insurance  Co.  t'.  Le  Roy,  7  Cranch, 
26 ;  Hand  v.  Baynes,  4  Whart.  204 ;  33  Am. 
Dec.  64;  Le  Sage  f.  B.  B.  Co.,  1  Daly, 
306;  Ackley  v.  Kellogg,  8  Cow.  223;  Pow- 
ers V.  Davenport,  7  Blackf.  497 ;  43  Am. 
Dec.  100;  Souter  v.  Baymore,  7  Pa.  St. 
415;  47  Am.  Dec.  518;  Sager  v.  R.  R.  Co., 
31  Me.  228;  50  Am.  Dec.  659;  Phillips  v. 
Brigham,  26  Ga.  617;  71  Am.  Dec.  227; 
Bennett  f.  Byram,  38  Miss.  17;  75  Am. 
Dec.  90.  A  common  carrier  received  goods 
at  Worcester,  Massachusetts,  to  trans- 

190 


port  to  the  consignees,  at  Mattoon,  Hli- 
nois,  and  carried  them  by  way  of  Chicago, 
instead  of  the  most  usual  and  direct 
route,  by  way  of  Indianapolis ;  and  while 
stored  in  Chicago  awaiting  a  reshipment, 
they  were  de>troyed  by  the  great  lire  of 
1871.  Jlelil,  that  the  carrier  was  not  ex- 
cused from  liability  on  the  ground  of  in- 
evitable accident,  as  there  was  no  com- 
pulsion to  take  the  goods  through 
Chicago,  Merchants'  etc.  Trans.  Co.  v. 
Kahn,  70  111.  520. 

4  Maryland  Ins.  Co.  f.  Le  Boy,  7 
Cranch,  26. 

."i  See  opinion  of  Tindall,  C.  J., inDavis 
i>.  Garrett,  6  Bing.  716;  Aug.  on  Car.,  §§ 
203-4;  Story  on  Bail.,  §  413;  Powers  v. 
Davenport,  7  Blackf.  496;  43  Am.  Dec. 
100;  Philips  r.  Brigham,  26 Ga.  617;  71  Am. 
Dec.  227 ;  Lawrence  v.  McGregor,  Wright, 
193. 

6  Powers  V.  Davenport,  7  Blackf.  496 ; 
Lawrence  r.  McGregor,  Wright,  193;  Phil- 
lips V.  Brigham,  26  Ga.  617. 

7  Ingalls  V.  Brooks,  £d.  Sel.  Gas.  104. 


CH.  XI.]  RESPONSIBILITY  DUiaNG  TRANSIT. 


128 


canal,  and  he  takes  them  out  to  sea,^  and  they  are  lose 
by  the  act  of  God,  he  is  liable.  So,  if  he  agrees  to  send 
them  by  one  line  of  boats,  and  sends  them  by  another,- 
or  if  he  agrees  to  send  them  by  steam  and  he  sends 
them  by  sail.''  The  burden  of  showing  a  necessity  for 
a  deviation  rests  upon  the  carrier;*  and  the  necessity 
must  be  real,  and  not  merely  apparent.''*  If  the  devia- 
tion is  only  for  the  convenience  of  the  carrier,  he  as- 
sumes the  risk  of  any  loss  that  may  occur,  and  becomes 
an  insurer  at  all  events."  Rut  it  is  tlie  duty  of  the  car- 
rier, in  an  unforeseen  emergency,  when  the  safety  of 
the  goods  requires  it,  and  when  the  consent  of  the 
owner  may  fairly  be  presumed,  to  deviate  from  the 
letter  of  his  instructions,  and,  if  possible,  to  notify  the 
owner  of  such  deviation.^  If  a  carrier  lias  agreed  to 
send  goods  by  a  particular  line  of  boats,  and  the  owner 
of  the  boats  refuses  to  receive  them,  the  carrier  should 
advise  the  owner  of  the  goods  of  that  fact,  depositing 
them  in  a  warehouse  if  need  be,  and  should  wait  for 
further  instructions.**  And  a  carrier  is  bound  to  fol- 
low the  instructions  of  his  employer  as  to  the  selection 
of  carriers  beyond  his  own  route.^  It  has  been  said 
that  if  a  loss  occurs  after  a  deviation,  and  the  carrier 
can  show  that  a  loss  must  have  certainly  occurred  had 
there  been  no  deviation,  the  carrier  shall  be  excused;"^ 
but  it  is  difficult  to  see  how  such  proof  could  be  pos- 
sible. 

§  128.    Duty  of  Carrier  to  Preserve  Ooods  Dam- 
aged by  Act  of  God. — Where  the  loss  sustained  by 


1  Hand  v.  Baynes,  4  Whart.  204. 


versing  «.  c,  31  Barb.  196 ;  Sagcr  v.  R.  Co., 


2  Johnsonr.  New  York  Cent.  K.  Co.,        31  Me.  228. 


33N.  Y.  610;  Cox  f.  Foscne,  37  Ala.  505; 
79  Am.  Dec.  69. 

3  Wilcox  i>.  Parmlee,  3  Sandf.  610. 

*  Le  Sage  r.  K.  Co.,  1  Daly,  306;  Ack- 
ley  V.  Kellogg,  8  Cow.  223. 

«  Hand  v.  IJaynes,  gupra. 

«  Johnson  v.  K.  Co.,  33  N.  Y.  610,  re- 


7  Ibid. 

8  Jbid. ;  Fisk  v.  Newton,  1  Denio,  45 ; 
iStory  on  Bail.,  sec.  543;  Goodrich  v, 
Thompson,  44  N.  Y.  324. 

8  Johnson  v.  R.  Co.,  33  N.  Y.  610. 
10  Maghee  v.  Camden  etc.  R.  Co.,  45  N. 
Y.  514. 

191 


03 

5j 


i 


n 


•■I 


§129 


RESPONSIBILITY  DURING  TRANSIT.         [PART  II. 


the  act  of  God  is  not  a  total  one,  it  is  the  duty  of  the 
rarrier  to  preserve  such  portions  of  the  goods  as  may 
still  possess  some  commercial  value.^  And  he  must 
show  that  he  afterwards  delivered  them  to  the  con- 
signee without  any  further  damage,-  or  that  he  has 
used,  actively  and  energetically',  such  means  to  save 
them  as  prudent  and  skillful  men  engaged  i.u  his  busi- 
ness might  fairly  be  expected  to  use  under  like  cir- 
cumstances.^ Thus,  for  illustration,  if  goods  are  wet 
during  a  storm,  the  carrier  must  open  them  and  dry 
them;*  or  if  liis  vessel  is  wholly  disabled,  he  must  use 
his  utmost  exertions  to  transport  or  send  the  goods 
forward  to  the  port  of  delivery,  even  though  he  have 
to  hire  another  vessel  for  that  purpose.''  In  any  event, 
the  carrier  will  always  be  answerable  for  that  amount 
of  the  damage  which  is  the  result  of  his  own  want  of 
diligence." 

§  129.  The  Public  Enemy. — Common  carriers  are 
not  responsible  for  losses  caused  by  the  public  enemy. 
Public  enemies  are  those  with  whom  the  Nation  or 
State  is  at  open  war,  and  pirates  on  the  high  seas.^  A 
loss  by  thieves  or  robbers,**  or  bj'  embezzlement,"  or  by 
rioters  or  insurgents,^ *^  is  not  within  the  exception,  un- 
less the  insurrection  assumes  the  magnitude  of  an  in- 
ternational war,  as  was  the  case  in  the  late  civil  war 


1  Cfaig  V.  Childress,  I'eck,  270. 

2  Day  V.  Ridley,  16  Vt.  48. 

3  Railroad  Co.  v.  KeeveB,  10  Wall.  176; 
Nashville  etc.  11.  Co.  I'.  David,S  Heisk.  261. 

4  Chouteanx  v.  Leech,  18  Pa.  St.  224. 

«  The  Maggie  Hammond,  9  Wall.  435. 

8  Faulkner  v.  Wright,  Rice,  107. 

7  Chitty  on  Car.,  37;  Jeremy  on  Car., 
.S4;  Story  on  Bail.,  §§  512,  526;  Ang.  on 
Car.,  §  200;  Kent's  Com.  216,  299.  A  force 
of  United  States  soldiers  under  com- 
mand of  an  army  officer  is  not  within  the 
phrase.  Seligman  v.  Armi  jo,  1 N.  Mez.459. 

192 


8  Coggs  V.  Bernard,  2  Ld.  Ray.  909; 
Aug.  on  Car.,  §  200;  Boon  v.  The  Belfast, 
40  Ala.  184;  Hall  v.  Cheney,  36  N.  H.  26; 
The  Belfast  v.  Boon,  41  Ala.  50;  Lewis  v. 
Lndwick,  6  Coldw.  368;  98  Am.  Dec.  454. 

9  Schietfelin  v.  Haryey,  6  Johns.  170; 
Watkinson  v.  Laaghton,  8  Johns.  213; 
Lewis  V.  Ludwick,  6  Coldw.  386. 

10  Coggs  V.  Bernard,  supra;  Forward 
V.  Pittard,  1  Term.  Rep.  27;  Missouri 
Pac.  R.  Co.  V.  Nevill,  30  S.  W.  Rep.  425 
(Ark.). 


CU,  XI.]  KESPONSIBILITY  DURING  TRANSIT. 


gl30 


in  this  country.*  Robbery  on  a  rivor  whore  tlie  tide 
ebbs  and  flows,  is  not  a  loss  froi^i  the  public  enemy, 
tliiougli  an  act  of  Congress  may  U{)ve  provided  that  such 
a  robbery  shall  be  deemed  r.iracv.-  The  *'kiny;'s  en- 
emies"  include  the  enemies  of  the  sovereign  of  the  per- 
son executing  the  bill  of  lading.' 

But  "though  the  public  enemy  be  in  itself  a  good  de- 
fense, yet  if  the  loss  be  dirwtly  brought  about  by 
I't^ason  of  the  negligence  or  want  of  proper  care  and 
foresight  of  the  part.y  himself,  it  will  not  excuse  him."* 

§  130,  Losses  Caused  by  Inherent  Defects  in 
Goods  Carried.— Carriers  are  not  liable  for  losses  aris- 
ing from  the  ordinary'  wear  and  tear  of  goods  in  the 
course  of  transportation,  nor  for  their  ordinary  deter- 
ioration in  quantity  or  quality,  nor  for  their  inherent 
natural  infirmity  or  tendency  to  damage;  and  this  rule 
includes  the  decay  of  fruits,  the  diminution,  leakage 
or  evaporation  of  liquids,  and  the  spontaneous  com- 
bustion of  goods.  In  all  such  cases,  where  the  negli- 
gence or  wrongful  act  of  the  carrier  does  not  co-operate 
in  the  loss,  he  will  be  excused.'"'  This  exception  also  in- 
cludes all  injuries  done  by  living  animals  to  them- 
selves and  to  each  other;  losses  that  are  caused  by 


51 


'  Uubbard  v.  Ilarnden  Kxpress  Co., 
10  11. 1.  261 ;  Smith  r.  IJrazelton,  1  Ueisk. 
44;  Lewis  v.  LudwicJ:,  su;ira;  IJland  r. 
K;;p.  Co.,  i'Uuvall,  .S2;  85  Am.  Dec.  623; 
Set  NasUville  etc.  11.  Co.  v.  Estis,  7  Heisk. 
()2:i. 

2  The  Belfast  v.  Boon,  41  Ala.  50. 

3  Unssell  V.  Nieman,  17  C.  B.,  X.  S.  leo. 

4  Clarke  r.  U.  Co.,  39  Mo.  184;  90  Am. 
Dec.  458;  Amies  v.  Stevens,  1  Strange, 
128;  Forwards  I'ittard, ««;)ra;  Parker 
1'.  .James,  4  Camp.  112. 

6  Story  Bail.,  §  492  «;  3  Kent's  Com. 
2!)9-301;  Hastings  v.  Pepper,  11  Pick. 
41;  Chitty  Carr.  44;  Browne  Carr.  103; 
Aug.  Carr.  §  211;  The  Collenberg,  1 
Black,  170;  Am  Ex.  Co.  i;.  Smith,  33 
Ohio  St.  511.    Losses    of   this  kind  are 

14 


sometimes  spoken  of  as  being  caused 
by  the  act  of  God.  Browne  Carr.  102; 
Warden  r.  Greer,  G  Watts,  424;  but  the 
action  of  Nature  causing  the  loss  is 
neither  sudden,  violent,  nor  irresistible. 
Thoy  do  not,  therefore,  fall  within  any 
definition  of  the  act  of  God.  Ante  §  120. 
See  Hall  v.  Rcnfro,  3  Mete.  (Ky.)  51. 
In  an  action  against  a  common  carrier 
for  damages  for  refusing  to  receive  and 
transport  grain,  it  is  competent  for  the 
plaintiff  to  show  that  such  refusal 
caused  the  grain  to  become  heated  and 
spoiled,  notwithstanding  the  fact  that 
such  injury  resulted  from  the  inherent 
nature  of  the  grain.  Pitts,  etc.  U.  Co.  v, 
Morton,  61  Ind.  539 ;  28  Am.  Rep.  682. 

193 


P 

< 

rn 

"JO 

if) 


I' 


,  -8 


:i%n 


§131 


ItESPONSIBILITY  DUKINO  TRANSIT.         [PART  II. 


their  inhoront  vices  and  propensities,'  und  which 
e.\<iise  the  carrier  if  his  uejjiij'cnco  does  not  concur  in 
causiuy;  theui.- 

§  131.  Losses  Caused  by  Seizure  under  ProcesH.-— 

A  carrier  is  not  liable  for  {^joods  taken  out  of  his  hands 
by  h'j^al  process."*  Where  j^oods  are  attached  in  the 
hands  of  a  common  carrier,  he  can  not  give  them  up  to 
the  ccmsiguee  wliile  tlie  attachment  is  pending.*  in 
such  case,  the  carrier  is  not  answerabh',  even  though 
the  goods  have  been  attache<l  for  tlie  debt  of  a  third 
person,  and  under  a  proceeding  to  which  the  employer 
of  the  carrier  is  not  a  party.  The  right  of  the  oflicer 
to  hold  the  goods,  can  oul}'  be  determined  by  the  court 
having  jurisdiction  of  the  attachment  suit.  The  rem- 
ed}^  of  the  bailor,  for  an  illegal  seizure  of  his  goods 
for  the  debt  of  another,  is  not  against  the  carrier,  but 
against  the  otlicer  making  the  seizure,  or  against  the 
plaiutiir  in  the  attachment,  if  he  directed  the  seizure."' 


1  Ang.  Cnrr.,  §  214 ;  Michi(?an  R.Co.  v. 
McDouongli,  21  Mifh.  Ifi,");  Lake  Shore  U. 
Co.  V.  I'erkins,  25  Slich.  32!( ;  Kansas  I'ao. 
U.  Co.  V.  Bcynolds,  8  Kaa.  623;  Great 
Western  It.  Co.  r.  Blower,  20  W.  R.  77G ; 
Mo.  I'ac.  U.  Co.  V.  Fagan,  9  S.  W.  Rep. 
749  (Tex). 

2  Clarke  V.  R.  Co.,  U  N.  Y.  570;  Ohio 
etc.  R.  Co.  t'.  IJunbar,  20  111.  cn ;  Smith  r. 
U.  Co.,  12  Allen  531;  llall  v.  Uenfro, 
supra;  Evans  v.  R.  Co.,  lU  Mass.  H2; 
Conger  i-.  R.  Co.,6Duei-.  375;  Harris  f. 
U.  Co..  20  N.  Y.  232;  I'owell  v.  R.  Co.,  32 
I'a.  St.  114 ;  Kaat  Tennessee  etc.  H.  Co.  v. 
Whittle,  27  Ga.  535;  Welch  v.  R.  Co.,  10 
Ohio  St.  65. 

3  Stiles  V.  Davis,  1  Black,  101 ;  Bliven  v. 
R.Co.,  36  N.  Y.  403;  35  Barb.  188;  Van 
Winkle  ti.  U.  S.  Mail  Co.,  87  Barb.  122; 
Burton  v.  Wilkinson,  18  Vt.  18G;  Ohio 
etc.  R.  Co.  r.Yohe,  51  lud.  181 ;  Furraan  r. 
R.  Co.,  46  N.  W.  Rep.  1049  (la.) ;  Bait, 
etc.  R.  Co.  V.  Davis,  10  Cent.  Rep.  630 
(I'a.) ;  French  i-.  Star  Union  Truns.  Co., 
134  Mass.  288;  MacVeagh  r.  R.  Co.,  5 
Pac.  Rep.  457;  Bingham  r.   Lamping,  28 

194 


I'a.  Si.  340;  Savannah  etc.  R.  Co.  r.  Wil- 
cox, 48  Ga.  432.  "I  feel  bound  to  hold, 
therefore,  that  seizure  by  judicial  pro- 
cess under  the  conditions  above  stated 
has  been  added  as  one  of  the  implied 
exceptions  in  the  carrier's  contract, 
limiting, 7>r<>  tanlo,  the  general  rule  of 
the  common  law  that  the  carrier  is  lia- 
ble for  non-delivery  under  the  bill  of 
lading  tlirough  any  causes  not  excepted 
therein."  Brown,  J.,  in  The  Chase,  37 
Fed.  Rep.  708. 

4  Stiles  r.  Davis,  vbi  supra;  Vcrrall  r. 
Robinson,  Tyrw.  lowt;  ».  c.  4  Howl.  1'.  (  . 
242;  g.  c,  2  Croiiip.  M.  &  R.  4y5.  "ll 
would  be  absurd  for  the  law  to  punish  a 
man  for  not  doing — or,  in  other  words 
to  require  him  to  do— that  which  it  for- 
bids his  doing,"  2  Pars,  on  Con.  674. 
"It  a  coach  be  damaged  by  a  carrier's 
fault,  whatever  is  lost  he  shall  be  com- 
pelled to  make  good,  unless  the  injury 
happens  by  the  act  of  God,  or  of  the 
kinff,  and  whatever  does  not  so  happen 
denotes  a  fault."  2  Colebroke's  Dig. 
Uinda  Law,  272. 

«  Stiles  V,  Davis,  supra. 


CII.  XI.]  UE8P0NRIBILITY  DUUINO  TRAXSIT. 


§131 


But,  when  such  a  soizuro  in  luadc,  t\w  carrier  iiinst  ini- 
mt'diately  notify  that  facl  to  the  consij^nor.'  The  car- 
rier must  asHure  himself  tliat  the  proceeding's  under 
Avhich  the  si'izure  is  made  are  re<;ular  and  valid;  hut  he 
is  not  bound  to  litigate  for  his  bailor,  nor  to  show  that 
the  decision  of  the  court  issuin<jj  the  process  is  correct 
in  law  or  fact ;-'  it  is  euouj;li  that  the  Avrit  is  vali<l  on  its 
face."  And  he  is  not  bound  to  assert  the  title  of  the 
bailor,  nor  to  follow  the  j^oods.^ 

In  a  case  decided  in  England  at  »/.s/  priiis,  by  Lord 
KlIenl)or()U<;h,  in  ISOS,''  a  vessel  had  been  detained  and 
condemned  in  Jamaica  for  a  breach  of  revenue  laws; 
but  on  appeal  the  conchMunation  was  reversed.  It  was 
held  that  the  master  was  liable  for  a  loss  caused  by 
the  delay,  the  court  saying:  "You  have  an  action 
against  the  ollicers.  The  shipper  can  only  look  to  the 
owner  or  master  of  a  ship."  This  last  proposition  is 
clearly  wrong.  We  do  not  find  the  case  cited  in  any 
late  English  work  on  Carriers,  and  it  is  no  doubt  re- 
garded as  bad  law.  But  in  late  cases  in  Massachu- 
setts, it  is  h(dd  that,  in  a  suit  against  a  common  carrier 
for  non-delivery  of  goods,  it  is  no  defense  that  they 
were  taken  from  the  carrier  by  an  ollflcer  under  an  at- 
tachment, against  any  (me  who  Avas  not  their  owner,'"' 


1  Ohio  etc,  R.  Co.  I'.  Yohc,  supra: 
Tilivon  r.  Iluclsnn  Hiver  K.  Co.,  mipra; 
Srrantom  r.  Karmers'  Hank,  24  N.  Y. 
421. 

2  liliven  r.  nndeon  Ifiver  1!.  Co.,  o.'i 
Hiirb.  188. 

3  AIcAlister  V,  R.  Co.,  74  .Mo.  HOI. 

4  Oliio  etc.  U.  Co.  V.  Yohc,  supra.  15nt 
sec  The  Chase,  37  FeU.  Uop.  708.  Where 
a  vessel  was  detained  by  a  military 
oflicer,  it  was  held  that  the  owner  of  it 
was  not  answerable  for  a  lo.ss  by  reason 
of  a  fall  of  prices  of  goods  on  board 
during  the  period  of  detention,  ho  hav- 
ing yielded  only  to  a  force  which  ho 
could  not  resist.    The  Oiirust,  1  lien.  4;;i. 

8  Gosling  r.  Higgins,  1  Camp.  451.  The 
carrier  agreed  to  deliver  the  goods  at  A. 


On  arriving  at  A  the  vessel  was  put  in 
(inarantinc,  and  the  goods  were  landed 
at  li,  the  usual  place  of  landing  under 
the  circumstances.  Held,  that  the  car- 
rier was  discharged  from  liability; 
Shepherd  i-.  I^nfear,  .5  La.  o'lS;  25  Am. 
Dec.  181. 

6  Kdwards  r.  White  Line  Transit  Co., 
104  Mass.  159;  0  Am.  Uep.  213  (1870).  The 
court  went  astray  on  the  irrelevant  and 
abstract  question  as  to  whether,  when 
the  property  of  A  is  attached  as  the 
property  of  15,  it  is  in  the  custody  of  the 
law  as  to  A.  The  case  is  remarkable  for 
a  very  ineffectual  criticism  on  Stiles  v. 
Davis,  nipra.  See  Hingham  v.  Lanipinp, 
2G  ra.  St.  340;  C7  Am.  Dec.  418. 

195 


03 


(■':;. 


§133 


RESPONSIBILITY  DUEI^STG  TRANSIT.         [PART  II. 


or  if  it  tui'Ds  out  that  they  were  by  law  exempt  from 
attachment.' 

§  132.  Ijosses  Caused  by  Act  or  Omission  of 
Owner.  — It  is  clear  that  if  the  owuer  of  the  goods 
should  directly  do  au  injury  to  them  while  in  the  hands 
of  the  carrier,  the  latter  could  not  be  made  answerable 
for  such  injuiy.  Such  a  case  is  not  likely  to  occur;  but 
cases  do  often  occur  where  the  loss  or  damage  to  the 
goods  would  not  have  been  inflicted  if  the  owner  had 
done  everything  that  he  ought  to  have  done.  The 
question  in  such  cases  is,  vrhether  the  owner  himself 
so  far  contributed  to  the  misfortune,  by  his  own  negli- 
gence or  want  of  ordinary  care  and  caution,  that  but 
for  such  negligence  or  want  of  care  and  caution  on 
his  part  the  misfortune  would  not  have  happeued.- 

§  133.  Losses  Caused  Through  Fraud  of  Owner.— 

The  carrier  has  a  right  to  know  the  value  of  the  goods, 
so  that  he  may  know  what  risk  he  takes  on  himself; 
what  care  he  should  exercise,  and  what  charge  he 
should  make.'"'  The  owner  is  not  bound  to  state  the 
value  unless  he  is  asked  to  do  so,'  but  if  he  is  asked  the 
value,  he  must  answer  truly."  Neither  must  the  owner 
mislead  the  carrier  by  making  him  underestimate  the 
value  of  the  goods,  even  though  no  questions  were 
asked;  as  by  sending  a  large  sum  of  money  concealed 


1  Kifl  V.  Old  Colonj  etc.  11.  Co.,  117 
Mass.  429;  19  Am.  Kep.  429. 

2  Railroad  Co.  v.  Jones,  95  U.  S.  439.  As 
where  a  shipper  of  stock  opened  a  win- 
dow in  the  car,  which  the  carrier  had 
shut,  and  the  horse  jumped  through  the 
window  and  was  killed.  Hutchiuson  v. 
11.  Co.,  37  Minn.  524;  \owby  i'.  K. 
Co.,  19  Mo.  App.  391.  So  whore  a  con- 
signor of  goods  agrees  that  they  may  be 
loaded  and  transferred  c\\  ojjcn  cars, 
the  carrier,  in  the  absence  of  negligence 
on  his  part,  is  not  liable  for  any  damage 
caused  to  the  goods  by  being  so  loaded 

196 


and  transported.  Western  etc.  K.  Co., 
V.  Exposition  Cotton  Mills,  7  S.  K.  Kep., 
916  ((ia.) 

aSec;)o«t  §  142. 

4  Railroad  Co.  v.  Fralott,  100  U.  S.  96; 
Brooke  r.  Pickwick,  4  Bing.  218;  South- 
ern Express  Co.  v.  Crook,  44  Ala.  468; 
Gorham  Mfg.  Co.  t'.  Fargo,  45  IIow.  Pr. 
90;  Camden  etc.  U.  Co.  v.  Baldauf.  16  Pa. 
St.  67 ;  Itclf  r.  Uapp,  3  W.  &  S.  21. 

»  Camden  etc.  U.  Co.  r.  Buldauf,  supra; 
Phillips  V.  Earle,8  Pick.  182;  Boskowitz 
I'.  Adams  Ex.  Co.,  5  Cent.  L.  J.  58. 


:'|:i 


CH.  XI.]  RESPOIS-SIBILITY  DURING  TIIAXRIT. 


S133 


in  a  bag  of  hay/  or  placed  in  a  box  with  articles  of 
small  value,-  or  by  sending  a  diamond  ring  in  a  small 
paper  box  tied  with  a  string,-^  or  by  sending  valuable 
jewelry  under  any  circumstances  which  ,Tould  natur- 
ally lead  the  carrier  to  suppose  it  to  be  of  but  trifling 
value  ;^  and  if  he  does  thus  mislead  the  carrier,  and  the 
goods  are  afterwards  stolen  or  lost,  the  carrier  is  not 
liable.^  In  all  cases  of  this  kind,  the  owner  is  held 
to  be  guilty  of  constructive  fraud,  although,  in  point 
of  fact,  no  fraud  was  intended."  In  further  illustra- 
tion of  this  important  rule  requiring  fair  dealing  on 
the  part  of  the  owner,  it  may  be  mentioned  that  if  one 
sends  glass  articles  in  a  box  without  informing  the 
carrier  of  the  nature  of  the  articles,  and  they  are 
broken;^  or  sends  a  trunk  labelled  as  containing  arti- 
cles of  a  different  and  smaller  value  than  those  really 
contained  therein,  and  they  are  stolen;"  or  sends  a 
check  indorsed  in  blank  in  a  letter,  without  informing 
the  carrier  of  the  contents  of  the  letter,  and  the  letter 
is  stolen;**  or  sends  money  in  a  package,  knowing  that 
by  the  rules  of  the  carrier  money  packages  are  required 
to  be  put  up,  indor  1  and  sealed  in  a  particular  way, 
which  requirement  is  disregarded,  and  the  money  is 
stolen,  the  carrier  wull  not  be  liable.^** 


m 


\     i   : 


1  Gibbon  v.  Paynton,  4  Bnrr  2298. 

2  Chicago  ntc.  K.  Co.  V.  Thompson,  19 
111.  578;  Magn.u  v.  Dinsmore,  62  N.  Y..S5; 
Kurnest  v.  Kxpress  Co.,  1  Woods,  573; 
Belger  v.  Dinsmore,  51  N.  Y.  1G6. 

SKverettr.  Honthern  Express  Co.,  4G 
Uu.  303;  Sleat  V.  Fagg,  0  Barn.  &  Aid. 
342. 

'<  Oppenheimer  v.  United  States  Ex- 
press Co.,  69  111.  62. 

STyly  r.  Morrice,  3  Carth.  485;  Titch- 
biirne  I'.  White,  1  Strange,  145;  Earnest 
r.  KxprssB  Co.,  1  Woods,  579;  Coxe  v. 
Heisley,  19  I'a.  St.  243;  Ilollister  c.  Now- 
len,  19  Wend.  234;  Everett  v.  Southi;rn 
Express  Co.,  46  Gu.  H03;  Cincinnati  etc. 


U.  Co.  r.  Marcus,  38  111.  219;  Ilcllman  f. 
lloUaday,  1  Woolw.  365 ;  Kenrig  v.  Kggel- 
ston.Aleyn  93;  Orange  County  Bank  f. 
Brown,  9  Wend.  85. 

0  Chicago  etc.  U.  Co.  r.  Thompson,  19 
111.  578 ;  Cooper  r.  Berry ,21  Ga.  526 ;  Great 
Northern  K.  Co.  v.  Shepherd,  14  Eng. 
Law  &  Eq.  Rep.  367. 

1  American  Express  Co.  v.  Perkins,  42 
111.  453. 

H  Kelt  r.  Rapp,  Kupro/  HoUisterv.  Now- 
\i.n,»Mpra. 

II  Hayes  r.  Wella,  23  Cal.  185. 

lost.  John  f.  Express  Co.,  1  Woods, 
612. 

197 


T 


§135 


RESPONSIBILITY  DURING  TRANSIT.         [PART  II. 


§  134.    Losses  Caused  by  Neglect  of  Owner. — If 

goods  are  sent  by  a  carrier,  without  being  legibly 
marked,  in  consequence  of  which  the  owner  sustains  a 
loss  or  inconvenience,  without  any  fault  of  the  carrier, 
lie  can  not  hold  the  carrier  bound  for  it.^  Nor  is  the 
latter  liable  for  a  loss  occasioned  by  the  negligence  of 
the  shipper  in  packing  the  goods.- 

But  he  is  liable  for  injuries  to  such  goods  to 
which  the  bad  packing  did  not  contribute.''  Im- 
proper packing  which  will  excuse  a  carrier  of  goods 
is  some  internal  and  latent  defect  of  which  the  carrier 
does  not  know,  and  from  which  loss  or  damage  ensues 
to  the  goods  in  the  ordinary  course  of  handling  and 
transportation.  Goods  may  be  delivered  to  the  carrier 
unpacked;  and  if  they  are  in  that  condition  injured  by 
the  mere  handling  or  transportation  in  a  careful  man- 
ner, the  owner  must  bear  the  loss;  but  if  they  are  in- 
jured by  rain  or  other  cause  for  which  the  carrier  is 
not  excused,  he  is  responsible.* 

§  135.     Owner  Undertaking   Part   of  Carrier's 

Duties.  — Where  the  owner  himself  undertakes  a  part 
of  the  duties  which  would  otherwise  devolve  on  the 
carrier,  the  responsibility  for  results  growing  out  of 
the  discharge  of  those  duties  rests  on  the  owner,  and 
the  carrier  is  not  liable  in  respect  thereof.^     If  the  own- 


1  The  Huntress,  Davios  82;  Finn  r.  R' 
Co.,  102  Mass.  2B3.  Erie  R.  Co.  v.  Wilcox, 
84  111.  239;  25  Am,  Rep.  451;  South. 
Ex.  Co.  V.  Kaufman,  12  Ileisk.  161.  In 
an  action  against  a  common  carrier  to 
recover  for  damages  to  fruit  trees  tnis- 
sent,  field,  that  the  plaintiff  was  guilty 
of  contributory  negligence  in  marking 
the  goods  "Inka,  Iowa,"  without  desig- 
nating Tama  County,  there  being  an- 
other town  named  "Inka"  in  Keokuk 
County.    Congari'.  U.  Co.,  24  Wis.  157; 

198 


Am.  Rep.  164. 

2  Ang.  Carr.  §  212;  Klauber  f.  Ameri- 
can Express  Co., 21  Wis.  21 ;  The  Colonel 
Ledyard,  1  Spruguu  530;  Uayes  v.  Wells, 
23  Cal.  185. 

3  Shriver  v.  Sioux  City  etc.  R.  Co.,  24 
Minn,  606;  31  Am.  Rep.  353. 

■»  Klauber  v.  Am.  Exp.  Co.,  21  Wis- 
21;  91  Am.  Uec.  452;  sec  Stewart  r. 
Crowley,  2  Stark.  323;  Gorhara  Mufg.  Co* 
V.  Fargo,  35  N.  Y.  (S.C)  4,34. 

A  I'attou  V.  Johnson,  131  Mass.  297. 


CI 


I 


CII.  XI.]  RESPONSIBILITY  DURING  TRANSIT. 


§135 


'ill 


er  of  cattle  goes  with  them,  under  an  agreement  with 
the  railroad,  to  give  certain  attention  to  the  cattle, 
the  company  will  not  be  liable  for  losses  occasioned  by 
his  inattention  to  the  duties  undertaken  by  him.*  In 
these  cases  there  was  negligence  on  the  part  of  the 
owner;  but  negligence  is  not  a  necessary  element  of 
tlie  rule.  Thus,  if  hogs  are  sent  in  a  car  selected  by 
the  owner,  and  not  belonging  to  the  carrier,  and  the;, 
are  injured  by  reason  of  a  defect  in  such  car,  the  car- 
rier is  not  liable — at  least,  if  the  defect  in  the  car  was 
not  known  to  the  latter.-  So,  when  the  consignor  of 
goods  agrees  that  they  may  be  loaded  and  transferred 
on  open  cars,  the  carrier,  in  the  absence  of  negligence 
on  his  part,  is  not  liable  for  any  damage  caused  to  the 
goods  by  being  so  loaded  and  transported."*  The  car- 
rier is  not  liable  where  the  goods  are  transported  in  a 
cur,  in  the  exclusive  control  of  the  shipper's  agent,  and 
are  destroyed  by  his  act,  whether  accidental  or  negli- 
gent.* There  is,  of  course,  a  still  stronger  reason  for 
the  application  of  the  rule  where  the  shipper  under- 
tialft's  to  put  the  proi)erty  on  a.  car,  aud  puts  it  on 
accordingly,  knowing  the  car  to  be  unsafe,  and  neg- 
lecting to  inform  the  carrier  of  that  fact,  and  a  loss 
occurs  by  reason  of  the  defect  in  the  car,''  or  in  ap- 
l»liances  furnished  by  him,  the  shi})per." 

Rut  if  the  goods  are  delivered  to  a  carrier  in  a  storm, 
and  he  receives  them,  his  common-law  liability  at  once 


< 


a: 


1  South  Alubama  etc.  R.  Co.  v.  Hen- 
leiii,52  Ala.  006;  Tower  v.  Utica  etc.  n. 
Co.,  7  Hill  47;  (lleason  f.  Goodrich  TrauB. 
(/'o.,  ,T2  Wis.  85;  Uoderick  v.  Railroad 
Co.,  7  VV.  Va.D4;  Ilarvpy  r.  Rose,  26  Ark. 
.1;  iMclJeath  i'.  R.  Co.,  20  Mo.  (App.)  445; 
KnPt  Tcnn.  etc.  R.  Co.  r.  Johnson,  7.')  Ala. 
fi76;  51  Am.  Rep.  489;  Newby  t'.  R.  Co., 
19  Mo.  (App.)  391. 

2  niinois  Cent.  R.  Co.  v.  Hall,  68  111. 
409. 


■I  West.  etc.  U.  Co.  i:  Kx.  Cotton  Mills, 
7  S.  E.  Rep.  916. 

4  Hart  V.  R.  Co.,  69  Iowa,  485;  Kast 
Tenn.  R.  Co.  r.Whittle,  27  Ga.  535 ;  73  Am. 
Dee.  731. 

*  Retts  V.  Farmers'  Loan  Co.,  21 
Wis.  80. 

8  Lovcland  r.  Hurke,  120  Mass.  1.39;  21 
Am.  Rep.  507;  Koss  i-.  R.  Co.,  49  Vt.  364; 
24  Am.  Rep.  144. 

199 


§135 


RESPONSIBILITY  DURING  TRANSIT,         [PART  JI. 


C] 


attaches;^  and  if  the  goods  are  placed  by  a  carrier  in 
an  open  car,  when  they  should  have  been  placed  in  a 
closed  one,  the  mere  fact  that  the  owner  knew  of  this 
at  the  time,  will  not  relieve  the  carrier  from  responsi- 
bility for  their  safety.-  So,  an  agreement  for  the  per- 
formance of  the  duties  of  the  carrier  in  a  particular 
manner  will  have  the  effect  to  relieve  him  of  a  part  jf 
his  responsibiliti'^s.  Thus,  if  goods  are  shipped  und<*r 
a  contract  that  they  shall  be  carried  on  deck,  the  ship- 
per, having  exercised  his  judgment  as  to  the  place  i)f 
stowage,  takes  upon  himself  all  the  risk  arising  there- 
from;"' and  if  one  prefers  to  send  a  wagon  on  a  phtt- 
form-car,  to  taking  it  to  pieces  and  putting  it  in  a  box- 
car, and  it  is  blown  off  by  the  win<l,  the  carrier  is  not 
liable.*  These  cases  are  but  illustrations  of  the  prin- 
ciple first  laid  down  in  this  section,  since  in  each  of 
them  the  owner  uses  his  own  discretion  as  to  the  man- 
ner of  the  carriage,  instead  of  leaving  the  matter 
wholly  to  the  carrier. 

But  even  where  the  owner  takes  upon  himself  the 
duties,  or  some  of  the  duties  of  the  carrier,  this  will  not 
release  the  carrier  from  liability  for  his  own  neglect.'^ 
Thus,  where  a  shipper  agreed  to  accompany  his  stock, 
and  feed  and  water  them  at  his  own  risk,  it  was  held 
that  the  carrier  was  liable  for  loss  because  of  his  fail- 
ure to  furnish   him   proper   facilities   for  so   doin|{.'' 
So,  in  Georgia,  a  railroad  received  a  car-load  of  mides 
to  be  delivered  at  A.     It  was  agreed  that  the  company 
was  not  to  fee<l  or  water  the  mules,  but  that  the  ship- 


P 
V 

h 

V 

c< 


1  New  Rmnswick   Steam    Navigation        Chnbb  r.  Rcnaud,26  Law  Uep.  492. 
Co.  V.  Tiers.  24  N.  J.  677;  The  Stamdiffe, 
15  Fed.  Rep.  350. 

2  Montgomery  etc.  U.  Co.  r.  Edmonds, 
41  Ala.  667;  Hawkins  c.  Great  Western 
R.  Co..  17  Mich.  D7;  (Jreat  Western 
B.  Co.  V.  Hawkins,  IS  Mich.  427. 

3  Lawrence  v.  Minturu,  17  Uow.  100; 

200 


*  Miltimore  v.  B.  Co.,  37  Wis.  190; 
Boss  f.  B.  Co.,  49  Vt.  364. 

s  Pcnn  1'.  R.  Co.,  49  N.  Y.  204-  .  Am. 
Ilep.  355;  Pratt  v.  B.  Co.,  102  Slass.  HUI. 

6  Wabash  etc.  11.  Co.  r.  Pratt,  15  111. 
App.  177. 


, 


'v  m 


CII.  XI.]  KESPONSIBILITY  DITKING  TRANSIT. 


§135 


per  was  to  be  afforded  facilities  for  this.  The  com- 
pany negligeiitly  carried  the  mules  to  D,  forty  miles 
beyond  A,  and  they  stood  there  in  cars  two  days, 
without  food,  water,  or  care.  It  was  held  that  the 
company  was  liable  for  the  damages.^ 


1  Bryant  r.  R.  Co.,  68  Ga.  805. 


201 


m 


C3 

'mm 
< 

C/5 


■I 


CI 
Si 


CHAPTER  XII. 


MODIFICATION   OF    LIABILITY   BY    AGREEMENT. 


Section  136.  Power  of  Common   Carrier  to  Limit  his   Liability. — In 
England. 

137.  In  the  United  States. 

138.  Reasons  for  the  American  Rule. 

139.  Anomalous  Doctrines  in  New  York,  Illinois  and  Penn- 

sylvauia. 

140.  Notices  Limiting  the  Carrier's  Liability. 

141.  Distinctions    Between    Notices    Limiting    Lial)ility    and 

Notices  of  Reasonable  Regulations. 

142.  Notices  as  to  Value  and  Cliaracter  of  Goods. 

143.  Methods  of  Giving  Notice. — Advertisements  and  Placards. 

144.  Notices  in  Receipts  or  other  Vouchers. 

145.  Notice  Assented  to  Constitutes  a  Contract. 

146.  Assent  not  Inferred  from  Mere  Knowledge. 

147.  Accepting  Papcis  Containing  Limitations  or  Conditions. 

148.  Bills  of  Lading. 

149.  Express  Receipts. 

150.  Baggage  Checks. 

151.  Requisites  to  Validity  of  such  Notices. 

152.  There  Must  be  no  Mistake. 

153.  Nor  Duress. 

154.  Nor  Fraud. 

155.  Nor  Waiver. 

156.  Nor  Antecedent  Parol  Contract. 

157.  Must  have  a  Consideration. 

158.  Time  and  Manner  of  Making  Claim. 

159.  Otlier  Conditions. 

IGO.  Bills  of  Lading  as  Receipts  and  Contracts. 

161.  EflEect  of  the  Special  Contract. 

162.  Contracts  Construed  Strictly  Against  Carrier. 

Conditions  and  Exceptions  Peculiar  to  Carriage  bij  Water, 


163. 
164. 
165. 
16G. 

202 


Call  at  Ports. 

Damage. 

Dangers  of  the  Roads. 

Dangers  of  the  Seas  and  Perils  of  Navigation. 


m 


m 


CII.  XII.]  MODIFICATION    OF   LIABILITY. 

Section  107.  Dellcicncy  in  Quantity. 

168.  Extraordiuury  Marine  Risk. 

169.  Fire. 

170.  Good  Order  and  Condition. 

171.  Invoice  Value. 

172.  Leakage  and  Breakage. 

173.  On  Lakes  and  Kivors. 

174.  Pilot,  Master  or  Mariners. 

175.  Port  of  Discliarge. 

176.  Privilege  of  Be-sliip]iing. 

177.  Quantity  Guaranteed. 

178.  Heady  to  Discharge. 
170.  Restraints  of  Princes. 

180.  Rol)bers  and  Tliieves. 

181.  Tow  and  Assist  Vessels. 

182.  Value  and  Contents  Unknown. 

Conditions  and  Exceptions  Peculiar  to  Carriage  l»j  Land. 


136 


•; 


183. 

All  Rail. 

184. 

Article. 

185. 

C.  0.  D. 

18G. 

Depot. 

187. 

Feed,  Water  and  take  Proper  Care. 

188. 

Fire. 

189. 

Houseliold  Goods. 

190. 

Load  and  Unload. 

191. 

Loss. 

192. 

On  the  Train. 

193. 

Package  or  Thing. 

194. 

Perislialile  Property. 

195. 

Place  of  Destination. 

196. 

Tlirougli  Witliout  Transfer. 

197. 

Transit. 

198. 

Uuavoidaljle  or  Inevitable  Accident 

199. 

Value  or  Cost. 

o 
i 

'•mm 

"JO 


z 


03 

a: 


•../i; 


§  136.  Power  of  Common  Carrier  to  Limit  his  Lia- 
bility. —Ill  England,  the  power  of  a  common  carrier 
to  limit  his  extraordinary  liability',  seems  not  to 
have  been  admitted  by  the  earlier  writers  on 
the  common  law.  In  the  Doctor  and  Student, 
it  is  said:  "Tf  he  (the  carrier)  would  per  case 
refuse  to  carry   it   unless  promise  were  made   unto 

203 


,(  y 


§136 


MODIFICATION   OF   LIABILITY. 


[part  II. 


him  that  he  shall  not  be  charged  for  no  misde- 
meanor that  should  be  in  him,  the  promise  were  void; 
for  it  were  against  reason  and  good  manners;  and  so  it 
is  in  all  other  cases  like."^  And  so  in  Noys  Maxims  it 
is  said:  "If  a  carrier  would  refuse  to  carry  unless  a 
promise  were  made  to  him  that  he  shall  not  be  charged 
with  any  such  miscarriage,  that  promise  is  void."-  In 
Hide  V.  Proprkiors,^  Lord  Kenj'on  said:  "There  is  a  dif- 
ference where  a  man  is  chargeable  by  law  generally, 
and  where  on  his  own  contract  Where  a  man  is 
bound  to  any  duty  and  chargeable  to  a  certain  extent 
by  the  operation  of  law,  in  such  case  he  cannot  by  any 
act  of  his  own,  discharge  himself,"  putting  the  case  of 
common  carriers  who,  he  says,  can  not  discharge  them- 
selves "by  any  act  of  their  own,  as  by  giving  notice  for 
example  to  that  effect."  But  Lord  Kenyon  can  hardly 
be  considered  as  meaning  that  the  employer  of  the 
carrier  could  not  waive  something  of  the  strictness  of 
his  rights  by  a  special  agreement  with  the  carrier,  or 
that  such  an  agreement  would  not  inure  to  the  benefit 
of  the  latter,  though  such  a  construction  has  been  fre- 
quently placed  on  his  language.*  He  more  probably 
meant  to  say  that  the  carrier  could  not  by  any  ex  parte, 
"act  of  his  own,"  "as  by  giving  notice,"  unassented  to 
by  the  other  party,  "discharge  himself."  Eleven  years 
later.  Lord  Ellenborough  spoke  of  the  power  of  carriers 
to  restrict  their  general  liability  by  express  contract 
as  being  undoubted.^  The  earliest  authority  which  is 
cited  in  support  of  the  relaxation  of  the  ancient  rule, 
is  the  note  of  Sir  Edward  Coke  to  Soiithcotc^s  Case,  an 
authority  often  quoted  on  this  subject,  but  which  is 
somewhat  ambiguousj  '^Nota,  reader,  it  is  good  policy 


1  DiaI.2Ch.  38. 

2  Max.  9'J. 

3  1  Esp.  3G  (1793). 

204 


4  As  in  Hollister  f.  Nowlen.  19  Wend. 
2M. 

«  Nicholson  v.  Willan,  5  East.  S07 
(1804). 


CII.  XII.] 


MODIFICATION    OF   LIABILITY. 


§136 


for  him  who  takes  goods  to  keep,  to  take  tbem  in 
special  manner,  svil.  to  keep  them  as  he  keeps  his  own 
goods,  or  to  Iceep  them  the  best  he  can  at  the  peri)  of 
the  party;  or  if  they  happen  to  be  stolen  or  purloined, 
that  he  shall  not  answer  for  them;  for  he  who  accepteth 
them  ought  to  take  them  in  such  or  the  like  manner, 
or  otherwise  he  may  be  charged  by  his  general  accept- 
ance. So,  if  goods  are  delivered  to  one  to  be  delivered 
over,  it  is  good  policy  to  provide  for  himself  in  such 
special  manner,  for  doubt  of  being  charged  by  his  gen- 
eral acceptance,  which  implies  that  he  takes  ui)on  to 
do  it."^  But  this  case  was  one  against  an  ordinary 
bailee  without  rewanl,  and  Coke,  apparently,  was  not 
speaking  of  common  carriers.  Neither  was  the 
doctrine  that  a  carrier  may  limit  his  liability  by  a  spec- 
ial acceptance  definitely  acknowledged  by  Sir  Mat- 
tliew  Ilale,  in  Morse  v.  i^liic,"  as  some  writers,  Browne, 
Kedrteld,  au<l  Story,  among  others,  have  said.  But  by 
the  early  ])art  of  the  ])resent  century,"  it  was  settled  in 
England  that  common  carriers  might  limit  their  lia- 
bilities by  a  general  notice,^  or  by  a  special  contract,"' 
and  that  they  might  legally  contract  for  exemption 
from  the  consequences  of  their  own  neglect.'' 


1  Soutlicote's  Case,  *  Uep.  R4  (ICOl). 

2  1  Vent,  ino  (1U34). 

■'!  In  lS(i4  Lord  Kllenborongh  remarked : 
'"I'liere  is  no  cii.He  to  be  met  with  in  the 
books  in  which  Die  riRht  of  a  carrier 
thns  to  limit  by  special  contract  his  own 
responsibility,  has  ever  been  by  express 
decision  denied."  Nicholson  v.  Willan, 
5  East.  507. 

4  Mavinf?  v.  Todil,  I  Stork.  72;  Lceson 
r.  Holt,  1  .stark.  186;  Nicholson  r. Willan, 
5  East.  507.  In  Leeson  r.  Holt  (ISifi) 
Lord  KlUr.iborough  said  that  the  limita- 
tions made  in  this  manniir  seemed  to 
h.ive  e.xcludeil  all  responsibility  what- 
ever. 

5  Nicholson  i'.  Willan,  ."i  Ka^t,  507 
(1804);  Anonymous  v.  Jackson,  I'eakes 


Add.  Cas.  1S3  (ISOf)) ;  Covington  i-.  Willan, 
Uow.  115  (ISIO) ;  Munn  r.  IJaker,  2  Stark. 
255  (1817);  Clay  r.  Willan,  1  11.  lil.  2:»8 
(1789) ;  Clarke  v.  Gray,  6  Kast,  ,"i64  (1805) ; 
Hyde  v.  Trent  Nav.Co.,5T.  R.  389  (1793) ; 
Izult  r.  Mountain, 4  East, 371  (1803  ;  Han- 
ger r.  Great  Western  R.  Co.,  1  Kailway 
Cas.  1  (1838) ;  Uiley  v.  Uoi  ne,  5  Bing.  217 
(1828) ;  Uarris  v.  I'ackwood,  3  Taunt.  204 
(1810);  .Smith  v.  Uorne,S  Id.  144(1818); 
Leeson  i:  Holt,  1  Stark.  186  (1816) ;  IJeckr. 
Kvans,  IS  East,  244  ( 1812) ;  Lowe  v.  IJooth, 
13  Trice, 329  (1824) ;  Wyld  v.  l'ickford,8  M. 
&  W.  443  (1841) ;  Carr  v.  Lancashire  etc. 
U.  Co.,  7Kxch.  707  (]S:)2). 

«  Maving  r.  Todd,  1  Stark.  72  (1815); 
L-Jcson  V.  Holt,  1  Sta'-k.  186  (1S16).  In 
The  Majestic,  CO  Fed.   Uep.  6U  (1894), 

205 


i-i'C 


155 


CO 


r- 


m 


I'M 


;  it 

•^    t. 


§137 


MODIFICATION   OF   LIABILITY. 


[part  II. 


Finall3',  after  many  expressions  of  regret  by  the 
greatest  judges  of  the  English  bench,  in  numerous 
cases,  that  the  common  law  rule  had  not  been  adhered 
to  in  prescribing  the  measure  of  the  liability  of  the 
carrier  in  every  instance,^  Parliament  declared  that 
stipulations  limiting  the  liability  of  the  common  car- 
rier within  the  United  Kingdom,  should  l>o  invalitl 
unless,  in  the  opinion  of  the  court  before  Avhom  the  case 
was  tried,  such  stipulations  were  "just  and  reason- 
able"-— thus  placing  the  whole  railroad  system  urnhn- 
the  control  of  the  Judicial  tribuinals.'' 

§  137.  In  the  United  States.— We  have  seen  that 
a  common  carrier  has  two  distinct  liabilities,  includ- 
ing, first,  all  losses  occasioned  bj'  accident  or  mis- 
take, and  without  his  fault,  where  he  is  liable  by  the 
custom  of  the  realm,  or  the  common  law,  as  an  insurer; 
and  second,  all  losses  occasioned  by  his  default  or 
negligence,  where  he  is  liable  as  an  ordinary  bailee.' 
In  the  United  States,  it  is  almost  universally  held  that 
he  may  limit  his  responsibility  as  an  insurer,  by 
special  contract,  but  that  lie  cannot  by  any  contract 
exempt  himself  from  responsibility  for  the  conse- 
quences of  his  own  negligence,  or  for  the  negligence  of 
his  agents  or  servants.  This  is  so  well  established  in 
nearly  every  one  of  the  States,  as  well  as  in  the  Fed- 


Shipman,  J.,  says:  "It  is  well  known, 
and  in  Liverpool  etc.  Steam.  Co.  i: 
PhuMiix  Ins.  Co.,  129  U.  S.  S'.i',  the  Su- 
preme Court  (of  the  United  States)  has 
declared  that  by  the  law  of  England 
common  carriers  by  land  or  sea,  except 
60  far  as  they  are  controlled  by  the  Tro- 
visions  of  the  Kailway  and  Canal  Tralllc 
Act  of  1854,  are  permitted  to  exempt 
themselves  by  express  contract  from 
responsibility  for  losses  occasioned  by 
the  negligence  of  their  servants." 

1  IJiwson.Cont.  of  Carr.,  §  '26,  La  Rlanc 
J.  in  Beck  r.  Kvans,  16  Kast.  214;  Mans- 

206 


Held,  C.  J.,  in  Harris  r.  Pack  wood,  3 
Taunt.  2G4;  Best,  C.  J.,  in  Brooke  v. 
Pickwick,  4  IJing.  218;  Kllenborongli,  0. 
J.,  in  Nicholson  v.  Willan,  5  East.  507; 
Down  V.  Eremont,  4  Camp.  40;  Maving  v. 
Todd,  1  Stark  72,  and  Kerr  v.  Willan, 
Ilolt.  645 ;  Parker  J.,  in  Smith  v.  Home, 
Holt.  643;  and  Burroughs  J.  in  the  same 
case. 

2  17  and  18  Vice.  31,  Kailway  and  Canal 
Tramc(1854). 

3  Jervis,  C.  J.,  in  London  etc.  R.  Co.  v. 
Unnham,  18  C.  B.  826. 

•1  Ante,  §§  117,  118. 


CH.  XII.] 


MODIFICATION   OF   LIABILITY. 


§137 


eral  courts,  as  to  justify  its  beiu<>-  culled  tlie  American 
i:ule.' 


1  Federal  Court*— Railroad  Co.  v.  Lock- 
wood,  17  Wall.  857 ;  Uailroad  Co.  v.  I'ratt, 
2J  Willi.  123;  Kuinest  v.  Express  Co.,  1 
Wood  5iH;  Kxpresa  Co,  v.  Kountzo,  8 
Wall.342;IIunnewell  f.Tabor,2Spragtio 
1 ;  The  I'aciflo,  1  Dcady  17 ;  The  City  of 
Norwich,  4  Hen.  271;  Railroad  Co.  v. 
Manufacturing  Co.,  16  Wall.  318;  The 
May  Queen,  1  Newb.  Adm.  4fi.T;  The  New 
World  V.  King,  16  IIow.  461);  New  J'  rsey 
Steam  Nav.  Co.  v.  iMerchants'  Hank,  0 
IIow.  344;  York  Co.  v.  U.  Co., 3  Wall. 107; 
The  Rocket,  1  Hiss.  3.')4 ;  The  David  and 
Caroline,  5  idatchf.  266;  The  ISellona,  4 
Hon.  503;  Nelson  r.  National  Steamship 
Co.,  7  Hon.  340;  The  Invincible,  1  Low. 
226;  Liverpool  etc.  Steam  Nav.  Co.  v. 
Phionix  Ins.  Co.,  12!)  U.  S.  31t7 ;  J'he  Delhi, 
4  lien.  345;  ISank  of  Kentucky  c.  Adams 
Express  Co.,  93  U.  S.  174;  Knilroad  Co. 
V.  Stevens,  95  U.  S.  655;  .Vyres  v.  West- 
ern Co.,  14  lilatchf.  0;  Gait  r.  Adams 
Express  Co.,  SIcAr.  &  Mackey  1-24;  28 
Am.  Uep.  742;  Hart  r.  R.  Co.,  112  U.  S. 
331;  l'h(unix  Ins.  Co.  c.  Krie  etc.  Trans. 
Co.,  117  U.  8.  312;  Ormsby  i\  K.  Co.,  4 
Fed.  Rep.  700;  May  i'.  The  Powhattau,  5 
Fed.  Uep.  375;  The  Montana,  17  Fed. 
Itep.  377 ;  22  Id.  715 ;  The  Hrantford  City, 
29  Fed.  Rep.  323;  The  Majestic,  60  Fed. 
Rep.  624;  Thomas  v.  It.  Co.,  63  Fed.  Rep. 
200.  Alabama— Giey  v.  Mobile  Trade 
Co.,55AlR.  387;28  Am.  Rep.  729;  Steele 
r.  Townsend,  37  Ala.  247;  79  Am.  Dec. 
60;  .South  R.  Co.  V.  Ilenlein,  !52  .Via.  606; 
23  Am,  Rep.  578,  56  Ala.  368;  Southern 
Kx.  Co.  r.  Armstead,  50  Ala.  3,50;  South- 
ern Ex.  Co.  V.  Crook,  44  Ala.  408;  4  Am. 
Rep.  140;  Mobile  etc.  R.  Co.  v,  Hopkins, 
41  Ala.  480;  94  Am,Dec.607;  Southern  Kx. 
Co.  f.  Caperton,  44  Ala.  101 ;  4  Am.  Rep. 
118;  Mobile  etc.  U.  Co.  f.  Jarboe,  41  Ala. 
644;  Loniiville  etc.  R.  Co.  f.  Oden,  80 
Ala.  38;  Alabama  etc.  R.  Co.  v.  Little,  71 
Ala.  Oil;  Tenn.  etc.  R.  Co.  r.  .Johnston, 
75  Ala.  576;  51  Am.  Rep.  489;  .Vlabama 
etc.  R.  Co.  r.  Thomas,  83  Ala.  343; 
Louisville  etc.  R.  Co.  v.  Meyer,  78  Ala. 
697.  .,<rJt«n8o«— Taylor  i\  R.  Co.,  32  Ark. 
393;  29  Am.  Kep.  1;  St.  Louis  etc.  R.  Co. 
f.  Lesser,  40  Ark.  236;  Little  Rock  etc., 
K.  Co.    V.    Talbot,    39    Ark.  623;  Tay- 


lor V.  R.  Co.,  .39  Ark.  148;  Little 
Rock  R.  Co.  V.  Talbot,  47  Ark.  97. 
CaH/orn»(i— Cal.  Civ.  Code,  §§  2174,2175. 
Coiorat/o— Merchants'  Dispatch  Co.  v. 
Corntortli,3  Col.  280;  25  Am.  Dec.  757; 
Western  Union  Tel.  Co.  v.  Uraham,  1 
Col.  2;w;  Overland  Mail  Co.  r.  Carroll,  7 
Colo.  43.    Connec«cw<-Welch  f.  U.  Co., 

41  Conn.  333;  Derwort  v.  Loomer,  21 
Conn.  245;  Camp  v.  Hartford  .Steamboat 
Co.,  43  t;onn.  3:^3 ;  Lawrence  v.  R.  Co.,  36 
Conn.  03;  Hale  v.  New  Jersey  Steam 
Nav.  Co.,  15  Conn,  5,'f!i;  ,S9  Am.  Dec,  398; 
I'eck  i:  Weeks,  34  Coun.  145.  Dakota— 
Dak.  Civ.  Code,  §§  1258,1202.  Georgia— 
Cooper  r.  Herry,  21  Ga.  526;  Berry  v. 
Cooper,  28  (ia.  543;  Southern  Exp.  Co.  v. 
Newby,  30  (Ja.  635 ;  91  Am.  Dec.  783 ;  Wal- 
lace V.  .Matthews,.39(;a.  617;9!)Am.  Dec. 
47.'!;  Wallace  v.  Sanders,  42  Ga.  486; 
Georgia  R.  Co.  v.  Reatie,  66  Ga.  75;  42 
Am.  Rep.  75;  Georgia  R.  Co.  r.  Spears, 
66  Ga.  485;  42  Am.  Uep.  81;  GeorKia  R. 
Co.  I-.  Gaun,  68  (ia.  .350 ;  Southern  Ex.  Co. 
r.  I'urcell,  ai  Ga.  103;  93  Am.  Dec.  63; 
Cent.  li.  Co.  c.  Bryant,  73  (ia.  722.  Dela- 
lonre— Fliiui  r.  1!.  Co.,  1  Ilonst.  46!). 
///luoiji— .Anchor  Line  c.  Dater,  68  HI. 
369;  Illinois  Cent.  R.  Co.  v.  Franken- 
berg,  54  111.  88;  5  Am.  Uep.  92;  Western 
Trans.  Co.  f.  Newhall,  24  111.  466;  76  Am. 
Dec.  760;  Field  v.  R.  Co.,  71  111.  458;  Illi- 
nois Cent.  R.  Co.  t-.  Jlorrison,  19  111. 
136;  Chicago  etc.  U.  Co.  i:  Montfort,  60 
111.  175;  Illinois  Cent.  R.  Co.  v.  Smyser, 
.38  111.  354;  87  .Vm.  Dec.  301 ;  Illinois  Cent. 
R.  Co.  r.  Read,  37  II  .  484;  87  Am.  Rep. 
200;  Bokcr  i:  R.  Co.  42  111.  73;  Erie  etc. 
Trans.  Co.  v.  Dater,  91  111.  1!)5;  Mer- 
chants Dispatch  Trans.  Co.  i:  Theilbar, 
80  111.  71;  Illinois  Cent.  R.  Co.  v,  Adams, 

42  111.474;  92  Am.  Dec.  85;  Boscowitzr. 
Adams  Ex.  Co.,  93  111.  623;  34  Am.  Rep. 
191;  Erie  li.  Co.  i:  Wilcox,  84  111.  239;  25 
Am.  Rep.  451 ;  Adams  Ex.  Co.  t'.  Stetta- 
ners,  01  111.  184;  14  Am.  Rep.  57;  Illinois 
Cent.  R.  Co.  v.  Jonte,  13  111.  App.  424. 
Indiana.— St.  Louis  etc.  R.  Co.  v.  Smnck, 
49  lud.  302;  Michigan  etc.  R.  Co.  v. 
Hcaton,37  Ind.  448;  10  Am.  Rep.  89;  Ohio 
etc.  R.  Co.  t:  Selby,  47  Ind.  471 ;  17  Am. 
Uep.  719;  United  Slates  Ex.  Co.  v.  Uar- 

207 


I! 

Il  I  .'1 ;  I 


¥, 


!!(l 


1  4 


r 


§  138 


MODIFICATIOX    OF    LIABILITY.  [PAIIT  II. 


§138.  Reasons  for  the  Aiiiorlcan  Rule. — The  Amer- 
ican rule  has  its  foundation  upon  the  relation  which 
the  carrier  and  the  bailor  hold  to  each  other,  and  the 
danger  of  fraud,  actual  or  constructive.  "By  construc- 
tive frauds  are  meant  such  acts  or  contracts  as,  al- 
though not  originating  in  any  actual  evil  design  or 
contrivance  to  perpetrate  a  positive  fraud  or  injury 


ris.Sl  Ind,  127;  Adams  Kx.  Co.  !■.  UcHjtan, 
2HInd.  21;it2  Am.  Dec.  3S2;  Indiaiiupolis 
etc.  U.  Co.  V.  Allon,  ;U  Iiid.  ,m;  Wright 
r.  Gaflf,  6  lud.  41(1;  Thayer  r.  If.  Co.,  22 
liid.  2();8,^  Am.  Due. -llili;  Ailums  K.xp.  Co. 
V.  Kendrick,  il'S  Ind.  150;  Kosenfuld  r.  U. 
Co.,  103  Ind.  121;  M  Am.  Hep.  30(i;  IJart- 
letti'.  U.  Co.,  ii-t  Iiul.  i281.  /<*H'a.— See 
Laws  1806,  c.  i;'.,  p.  121 ;  Code,  §  laoT ;  I  latt 
r.  It.  Co.,  GO  la.  4S5;  and  see  McCoy  r. 
It.  Co..4t  la.  •12t;  Itrnsh  i:  U.  C'o.,4;s  la. 
f).")! ;  McDauiel  r.  It.  Co.,  24  la.  412;  Miilli- 
fritn  V.  U.  Co.,  J'.ii  la.  ISO;  Itose  v.  K. 
Co.,  S^  la.  24();  Whilmore  r.  Howmau, 
4  (i.  (ireen,  US;  Cursou  v.  Harris,  Id.  CHi. 
A'«n««s  — GoKKiu  v.  K.  Co.,  12  Kan.  4ir>; 
Railroad  Co.  r.  Caldwell,  8  Kan.  244; 
Kftii>*«8  0lc.  U.  Co.  r.  Ueynolds,  8  Kan. 
623;  Kalinian  r.  United  .States  Kxp.  Co., 
3  Kan,  205 ;  Kansas  etc.  U.  Co.  v.  Nichols, 
9  Kan.  23,-.;  12  Am.  Kep.  494;  St.  Louis 
etc.  11.  Co.  f.  Piper,  13  Kan.  505;  Sprngne 
V.  R.  Co.,  84  Kns.  347.  Kentucky.— Atlams 
Kxp.  Co.  V.  (jiuthrie,  9  IJush,  78;  Adams 
Exp.  Co.  V.  Nock, 2  DUV.5G2;  87  Am.  Dec. 
510;  LoniBvillc  etc.  It.  Co.  v.  Iledger,  9 
Lush,  G45;  15  Am.  Rep.  740;  Rhodes  v.  R. 
Co.,  9  Rush,  GSS ;  Orndorlf  i\  ,\danis  Kxp. 
Co.,  3  Rush,  1!)4 ;  96  Am.  Dec.  207 ;  Iteno 
1-.  IIogan,12  R.Mon.63;  54  Am.  Dec.  513; 
Louisville  etc.  R.  Co.  r.  Rrownlee,  14 
Bu'li,590.  iouisjana.— Roberts  r.  Riley, 
15  La.  Ann.  103;  77  Am.  Dec.  183;  .Simon 
V.  Fung  .Shucy,  21  La.  Ann.  .SG3 ;  New  Or- 
leans Mut.  Ins.  Co.  V.  R.  Co.,  20  La. 
Ann., ^02;  Baldwin r.  Collins, 9  Rob.  (La.) 
4G8;  Uiggins  v.  R.  Co.,  28  La.  Ann.  133; 
Logan  V.  R.  Co.,  11  Rob.  (La.)  24 ;  43  Am. 
Dec.  199;  Tardos  r.  R.  Co., ,35  La.  Ann.  75. 
Maine.— falser  r.  R.  Co.,  31  Me.  22S;  50 
Am.  Deo.  659;  Rcan  v.  Green,  12  Me.  422; 
Willis  V.  n.  Co., G2  Me.  488 ;  Fillebrown  i-. 
K.  Co.,  55  Me.  402 ;  92  Am.  Dec.  GOG ;  Little 
V.  U.  Co., 66  Me.  239.    il/ar^toHd.— Brelime 

208 


r.  Adams  K.xp.  Co.,  25  Mcl.,328;  McCoy  i-. 
Kric  Trans.  Co.,  42  Md.  4'.iH.  Mnaaaclin- 
«e««.— Mrown  f,  R.  C:o..  11  Cnsh.  97;  (iott 
V.  DiHHniore,  111  Muss.  45;  Muhmo  i-.  R. 
Co.,  12  Gray,  .388;  74  Am.  Dec.  698;  Jnd- 
son  f.  R.  Co.,  6  .\llen,  485;  83  Am.  Dec. 
646;  Perry  v.  Thompson,  98  Mass.  249; 
Grace  r.  Adams,  lOO  Ma.ss.  505;  1  Am. 
Rep.  131;  97  Am.  Dec.  117;  lloadley  f. 
Northern  Trans.  Co.,  115  Mass.  3(l4;  15 
Am.  Rep.  108;  Pemberton  Cn.  r.  R.  Co., 
104  Mass.  124;  Sijuiro  v.  R.  Co.,  ii,s  .Mass. 
239;  93  Am.  Dec.  IG.';  .School  District  v. 
R.  Co.,  102  Mass.  5.^2;  3  Am.  Rep.  502; 
Buckland  v.  Adams  Exp.  Co.,  97  Mass. 
124;  93  Am.  Dec.  G8.  Mii'hir/an.— Am. 
Trans.  Co.  i\  Moore,5  Jlich  ;iG8/  McMil- 
lan v.  R.  Co.,  16  Mich.  79;  93  Am.  Deo. 
208;  see  Mich.  Cent.  R.  Co.  r.  Ward,  2 
Mich.  538  overruled  in  Mich.  Cent.  R.  Co. 
V.  Hale  I)  Mich.  243;  Eeige  v.  R.  Co.,  62 
Mich.  1;  28  ;'.  W.  Rep.  685.  Minnesota.— 
C!!!isi«nf.on  v.  Am.  Exp.  Co.,  15  Minn. 
270;  2  Am.  Hep.  122;  Jacobus  r.  11.  Co., 
20  Miua,  i25;  18  Am.  Rep.  360;  Shrivcr 
v.  U.  Co.,  24  Minn.  506;  30  Am.  Rep. 
.353;  Moulton  v.  11.  Co.,  31  Minn.  85; 
47  Am.  Rep.  781;  Urlt  v.  R.  Co.,  .36 
Minn.  .306;  Brehl  i:  R.  Co.,  46  N.  W. 
Rep.  .3,33;  Hull  r.  U.  Co..  43  N.  W.  Rep. 
391.  Misstnaippi.—MobWe  etc.  R.  Co.  v. 
Weiner.  49  Miss.  725;  Whitesides  v. 
Thurlkill,  12  S.  &  M.  597 ;  51  Am.  Dec.  128 ; 
Chicago  etc.  R.  Co.  v.  Abels,  60  Jliss.  1017 ; 
New  Orleans  etc.  II.  Co.  v.  Kaler,  58 
Miss.  911 ;  Chicago  etc.  R.  Co.  r.  Moss,  60 
Miss.  1003;  45  Am.  Rep.  428.  Missouri.— 
Ketchum  v.  Am.  Exp.  Co.,  52  Mo.  390; 
Lupe  f.  R.  Co.,  3  Mo.  App.  77;  Cantling 
V.  R.  Co.,  54  Mo.  ,385;  14  Am.  Kep.  476; 
Levering  v.  Union  Trans,  etc.  Co..  42  Mo. 
88;  97  Am.  Dec.  820;  Rice  v.  R.  Co.,  63 
Mo.  314;  Sturgeon  i-.  R.  Co.,  65  Mo.  569; 
oxley  V.  B.  Co.,  65  Mo.  629;  Clark  v.  R. 


CI[.  XII.] 


MODIFICATION   OF   LIABILITY. 


8138 


upon  other  persons,  are  yet,  by  their  tendency  to  de- 
ceive or  niish'iid  other  persoiiH,  or  to  violate  private  or 
public  contidcuco,  or  to  impair  or  injure  the  public  in- 
terests, ilt'(Miie<l  equally  reprclit'usible  with  positive 
fraud,  and  therefore,  are  prohibited  by  law,  as  within 
the  same  reason  and  mischief  as  acts  and  contiacts 
done  iiiulo  uiiiiiKt."^     The  courts    therefore,  have  been 


Co,  64  Mo.  140;  Snider  v.  Atlama  Kxp. 
Co  ,03  Mo.  870;  KenU  v.  U.  Co.,  00  Mo. 
199;  Kirby  f.  AJanis  ICxp.  Co.,2  .Mo.  App. 
8S» ;  Drew  v.  Hod  Line  Transit  Co., 3  Mo. 
Afp.  495;  Mcl'ttdden  v.  U.  Co.,  92  Mo. 
341 ;  1  Am.  .St.  Kep.  721 ;  St.  I.otiis  etc.  U. 
Co  ,1'.  Cleary,  77  Mo.  0,14;  40  Am.  Dec.  l.S; 
Urjwn  r.  U.  Co., 18  .Mo.  (App.)6G!);  Dim- 
8o;i  i\  U.  Co.,  79  Mo.  '270;  Hull  v.  11.  Co., 
83  Mo.  574 ;  Craycraf t  v.  U.  Co.,  18  .Mo. 
(.\pp.)  437;  Potts  V.  11.  Co.,  n.Mo.  (App.) 
:m  ;  Tibby  i:  U.  Co.,  82  Mo.  292 ;  .Mo.  I'ac. 
K.  Co.  V.  Vandovciiter,  41  N.  W.  Hep.  998. 
A>'>rii»/(-a.— Atclilson  etc.  It.  U.  Co.  v. 
\Vi(slibarD,5  Ntb.  117;  llutcliison  i'.  U. 
Co.,  37  Nob.  524.  New  Uampuhire.—Hen- 
iiett  r.  Uutton,  10  N.  U.4H1 ;  Mosos  r.U.Co., 
24N.  n.  71;65  Am.  Dec.  222;  .S2  N.  H. 
523;  64  Am.  Dec.  3H1 ;  Darter  r.  Wheeler, 
49  N.  U.  9;  Hand  i:  U.  Co.,  69  N. 
U.  303;  New  .AfrKi-i/.— Asbinore  c. 
I'oiiu.  Steam  Co.,  28  N.  .J.  (I..)  180. 
Xi,rtli  Criro/iHo.— Lee  i:  U.  Co.,  72  N.  C. 
^u( ;  Smith  r.  11.  Co.,  04  N.  C.  235;  I'hifer 
r.  It.  Co.,  89  N.  C.  311;  4."i  Am.  Kep.  007; 
W'litehead  t".  11.  Co.,  87  N.  C.  255.  Ohio.— 
Di  vidson  V.  Ciraliam,  2  Ohio  St.  131;  (ira- 
liMm  V.  Davis,  4  Ohio  St.  ,'502;  02  Am.  Dec. 
2Ht  ;  Welsh  v.  K.  Co.,  10  Ohio  St.  05;  75 
Am.  Dec.  490;  Cleveland  etc.  It.  Co.  f. 
Ciirrnu,  19  Ohio  St.  1;  2  Am.  Hop.  .S02; 
Citicinnuti  etc.  R.  Co.  r.  Pontius,  19  Ohi'' 
St.  221 ;  2  Am.  Hep.  391 ;  Knowlton  i.  U. 
Co.,  19  Ohio  St.  200;  2  Am.  Uep.  395; 
United  States  Kx.  Co.  r.  Uacbman,  2 
Ciu.  Uep.  251;  28  Ohio  St.  144;  Erie  R. 
Co.  V.  Lockwood,  28  uhio  St.  358;  (iaines 
r.  Union  Trans.  Co.,  28  Ohio  St.  418; 
Union  Ex.  Co.  v.  Graham,  20  Ohio  St. 
696;  PittB.  etc.  K.  Co.  v.  IJarrett,  30  Ohio 
St.  448.  Tennessee. — Olwell  v.  Adams  Ex. 
Co.,  1  Cent.  L.  J.  100;  Craig  v.  Childress, 
Peck  370;  14  Am.  Dec.  751;  Nashville  etc. 
R.  Co.  V.  Jackson, 6  Uciak.  271;  Southern 


L'-. 


Ex.  Co.  r.  Womack,  1  Ilelsk.  250;  East 
Tenn.  etc.  U.  Co.  v.  Nelson,  1  Cold.  272; 
Walker  f.  .Skipwith,  Meitca  502;  33  Am. 
Doc.  161;  Dillard  v.  U.  Co.,  2  Lea,  288; 
Mcrchant,s'  Dinp.  Trans.  Co.  v.  Block,  86 
Teun.  .3;  12 ; 0  Am.  St.  Kep.  847 ;  ( 'owanl  v.  R. 
Co.,16Lea226;  57  .\m.  Rep.  220.  Texaa.— 
Stat.  Pat^ch.  Dijf.  art.  425,  R.  8.  art.  278; 
Houston  etc.  R.  Jo.  v.  Hurke,  55  Tox.  .323; 
40  Am.  Rep.  808;  Gulf  etc.  R.  Co.  i-.  Mc- 
Gown,  05  Tex.  040;  Gulf  etc.  R.  Co.  v. 
Trawick,  08  Tex.  314;  2  Am.  Si.  Uep.  495; 
IIouHton  etc.  li.  Co.f.  Park,  1  Tex. (App.) 
Cas.  332;  Mo.  Pac.  R,  Co.  i:  Harris,  W. 
1257;  lloaton  v.  R.  Co.,  id.  774  ;  Texas  Ex. 
Co.  V.  Scott,  2  Tex.  (App.)  Cam.  73;  Tex. 
etc.  R.  Co.  c.  Ilamm,  id.  496;  Tex.  etc. 
R.  Co.  V.  Davis,  <(/.  192;  Te.x.  etc.  R.  Co. 
I'.  Dupree,  id.  318.  I'ermon*.— Enrniers' 
etc.  Rank  v.  (  liampluin  Trans.  Co.,  18 
Vt.  131 ;  23  Vt.  180 ;  60  Am.  Dec.  08;  Mann 
V.  Mirchard,  40  Vt.  320;  94  Am.  Dec.  .398; 
Rlamenthal  i:  ISrainerd,  38  Vt.  402;  91 
Am.  Dec.  ,349;  Kimball  v.  R.  Co.,20Vt. 
247;  02  Am.  Dec.  507.  riV»7inia.— Wilson 
V.  R.  Co.,  21Gratt.  054;  Virginia  etc.  R. 
Co.,  i:  Sayers,  20  Gratt.  328.  Jfest  Vir- 
ginia.—UaM.  etc.  R.  Co.  i:  Skeels,  3  W. 
Va.  586;  Maslinr.  R.  Co.,  14  W.  Va.  ISO; 
30  Am.  Rep.  478;  Hrown  v.  Express  Co., 
15  W.  Va.  812;  overruling  Haltimore  etc. 
R.  Co.  V.  Rathbone,  1  W.  Va.  77,  where 
the  doctrine  of  the  Now  York  cases  had 
been  adopted,  frweojisin.— IJoorman  v. 
Am.  Exp.  Co.,  21  Wis.  152;  Uetts  v.  Farm- 
ers' Loan  Co.,  21  Wis.  80;  91  Am.  Dec. 
400;  lUack  r.  Goodrich  Trans.  Co.,  65 
Wis.  319;  42  Am.  Rep.  319;  Annas  i'.  It. 
Co.,  67  Wis.  46;  57  \m.  Rep.  388;  Morri- 
son V.  Tran«.  Co..  61  Wis.  .596;  Lawson  v. 
R.  Co.,  04  Wis.  447;  54  Am.  Rep.  634; 
Abrams  v.  R.  Co.,  5a  N.  W.  Rep.  780. 
1  .Story  Eq.  .Jnr.,§258. 

209 


D3 


r 


§138 


MODIFICATION   OF    LIABILITY.  [PART  II. 


called  upon  to  consider  whether  by  reason  of  the  pe- 
culiar position  which  a  common  carrier  occupies 
towards  the  public,  he  has  not  such  a  preponderating 
advantage  as  should  place  his  employers  under  a  cer- 
tain disability  as  to  their  contracts  nmde  with  him. 
It  may  be  said  that  commerce  flourishes  best  when  it 
is  left  most  uutrammeled;  but  it  may  also  be  urged 
that  it  is  not  to  the  interest  of  commerce  that  a  com- 
mon carrier  shall  be  able  to  lay  an  embargo  on  trade 
at  any  time,  by  refusing  lo  transport  goods  unless  un- 
der such  restrictions  of  his  liability  as  would  hinder 
reasonable  men  from  giving  him  employment.  It  is 
very  true  that  a  common  carrier  can  not  compel  his 
customer  to  enter  into  a  contract  relieving  him  of  his 
common  law  duties.  The  former  has  the  »ight  to  in- 
sist on  the  carriage  of  the  goods  under  the  common 
law  rules;  and  if  the  carrier  refuse  thus  to  receive 
them,  he  is  liable  to  an  action.'  But  this  remedy,  be- 
sides being  vexatious  and  tedious,  is  one  that  may  have 
to  be  api)lied  in  every  case  where  the  issue  is  made 
between  the  carrier  and  an  employer;  and  it  may 
well  be  supposed  that  in  this  kind  of  a  contest,  the  car- 
rier, in  the  long  run,  Avould  be  able  to  set  the  public 
somewhat  at  defiance,  as  but  few  persons  would  be 
disposed  to  follow  up  a  litigation  which  would  be  for 
the  benefit  of  the  public,  but  which  must  be  prosecuted 
ft  their  own  costs  and  inconvenience.  In  most  kinds 
o:'  business,  a  salutary  influence  in  securing  services 
under  conditions  that  are  not  oppressive,  is  brought 
about  by  private  'ompetition.  But  in  the  case  of  many 
of  the  railroads  now  doing  the  greater  part  of  the 
carrying   business   of   the   country,    competition   can 


1  Mercantile  Mut.  Ins.  f'o.  r.  Chase, 
1  E.  D.  Smith  116;  Kirby  r.  U.  Co.,  2  Mo. 
(App.)    369;   Louisville   etc.   11.  Co.   v. 

310 


Itrownlpo,  14  Hnsli.  S90;  Sonthern  Kx. 
Co.  r.  Moon.  ;19  Miss.  822. 


CH.  XII.] 


MODIFICATION    OF   LIABILITY. 


§139 


1  For  the  arguments  in  favor  of  the 
American  rule  see  the  elaborate  Jadg- 
nient  of  Mr.  Justice  Bradley  in  liailroad 
Co.  r.  Lockwood,  17  Wall.  357;  and  the 
opiuionH  of  Worden,  C.  J.,  in  Mich. 
South.  U.  Co.  V.  Heaton,  37  Ind.  448;  10 
Am.  Uep.  89iof  Nishet,  J.,  in  Fish  v. 
l.'hHiiman,  2  Ga  ;47;  46  Am.  Dec.  393; 
and  of  the  diEsen.,ing  New  York  Judges 
in  Smith  v.  U.  Co.,  24  N.  Y.  222 ;  and  Stin- 
sonr.  B.  Co.,32N.  Y.  3;«.  "The  fruits 
of  this  rule,"  says  Davis,  J.,  in  the  latter 


case,  '•eferring  to  the  rale  establibhed  in 
New  Y'ork  that  carriers  may  by  contract 
exempt  themselves  from  responsibility 
for  acts  of  negligence,  "  are  already 
being  gathered  in  increasing  accidents 
through  tho  decreasing  care  and  vigil- 
ance on  the  part  of  these  corporations; 
and  they  will  continue  to  be  reaped  un- 
til a  just  sense  of  public  policy  shall 
lead  to  legislative  restriction  upon  the 
power  to  make  this  kind  of  contracts." 

311 


hardly  be  said  to  exist;  and  where  it  would  seem  to 
exist,  it  is  commonly  stifled  by  extensive  combinations 
between  rival  carriers.  In  the  infancy  of  (he  carrying 
business  of  England,  it  was  thought  to  be  necessary  to 
prescribe  rigid  rules  for  the  liability  of  common  car- 
riers, lest  they  might  be  tempted  to  collude  with  rob- 
bers who  then  infested  the  country.  This  reason  for 
these  rules  can  not  fairly  be  said  any  longer  to  exist. 
But  the  opportunity  of  the  carrier  to  violate  his  duties 
may  at  present  be  taken  advantage  of  in  many  ways. 
The  difficulty  of  fixing  him  with  proof  of  intentional 
injury  is  as  great  as  ever;  and  the  necessity  of  resort- 
ing to  his  services,  and  the  importance  of  a  proper  per- 
formance of  his  functions,  have  been  immensely  en- 
hanced.^ 

§  139.  Anomalous  Doctrines  in  New  York,  Illinois 
and  Pennsylvania. — A  few  courts  have  attempted  a 
distinction  between  the  negligence  of  the  carrier  and 
the  negligence  of  his  agents  and  servants.  The  ship- 
owner, for  example,  has  had  his  ship  constructed  by 
skillful  builders;  has  supplied  it  with  a  competent  cap- 
tain, a  proper  crew  and  every  appliance  in  the  way  of 
security  against  danger  that  experience  can  suggest 
or  has  approved.  The  railroad  company  has  a  road 
bed,  rails,  ties,  engines,  cars  and  other  machinery  of 
the  best  character  and  description,  and  has  used  due 


O 

<; 
:5S 


©3 


m 

li'  i 
Ml  ' 


••I 


§139 


MODIFICATION   OF  LIABILITY.  [PART  II. 


care  in  engaging  competent  employes.  While  not  per- 
mitting the  carrier  to  exempt  himself  from  liability  for 
a  loss  or  injury  arising  from  a  failure  in  these  respects,^ 
it  is  well  settled  in  New  York  that  carriers  may  by 
special  contract  exempt  themselves  from  liability  for 
losses  arising  from  any  degree  of  carelessness  and  neg- 
ligence on  the  part  of  their  servants  and  agents.^     The 


1  As  for  example  a  loss  caused  by  a 
defective  car.  Smith  v.  R.  C'o.,24N.  V. 
222;  Knell  v.  V.  S.  Steam  Co.,  33  X.  Y.  (8. 
C.)  423;  Hawkins  v.  U.  Co.,  17  Mich,  57; 
97  Am.  Dec.  179;  Welsh  r.  R.  Co..  10  Ohio 
St.  f)5;  75  Am.  Dec.  495;  Indianapolis 
etc.  K.  Co. !-.  Strain,  81  111.  504.  In  Eng- 
land a  stipnlation  exempting  a  carrier 
from  liability  for  injuries  caused  by  a 
defective  car  has  been  held  unreasona- 
ble and  invalid  under  the  statute.  Mc- 
Manns  v.  K.  Co.,  4  II.  &  N.  327 ;  5  Jur.  (N. 
S.)  681;  Gregory  v.  K.  C,  2  II.  &  C.  944; 
10  Jur.  (N.  S.)  243;  and  see  Tattersall  r. 
National  Steamship  Co.,  L.  K.  12  Q.  B. 
D.  297. 

2  Wilson  v.  R  Co.,  27  Uun.  149;  97  K. 
Y.  87 ;  Westcott  r.  Fargo,  03  Barb.  349 ;  6 
Lane.  319;  Gl  X.  Y.  542 ;  Lee  v.  Marsh,  2S 
How.  I'r.  275;  43  IJarb.  102;  Meyer  v. 
Harnden's  Fxpress  Co.,  24  IIow.  Pr.  290; 
Mercantile  Mut.  Ins.  Co.  r.  Chase, IK. 
D.  Smith  115;  Cragin  r.R  Co.,  SIX.  Y.6I; 
10  Am.  Uep.  696;  Condict  v.  II.  Co.,  54  N. 
Y.  500;  Lamb  v.  U.  Co.,  46  X.  V.  271 ;  15is- 
"^"11  V.  U.  Co.,  25  X.  Y.  442;  82  Am.  Dec. 
369;  I'crkins  f.  U.  Co.,  24  X.  Y.  196;  82 
Am.  Dec.  18;  Wells  v.  K.  Co.,  2t  X.  Y. 
181 ;  Mynard  v.  K.  Co.,  71  X.  Y.  180 ;  27  Am. 
Rep.  28;  Steinweg  r.  R.  Co.,  43  X.  Y.  123; 
3  Am.  Rep.  373;  lioswell  v.  R.  Co.,  6 
Bosw.  699 ;  10  Abb.  I'r.  442 ;  I  rench  v.  R. 
Co.,  4  Key es  108;  2  Abb.  App.  Dec.  196; 
I'rentice  v.  Decker,  49  Barb.  21 ;  Limbnr- 
ger  D.  Westcott,  49  Barb.  283;  Sunder- 
land V.  Westcott,  2  Sweeny  260;  Smith  i: 
R.  Co.,  29  Barb.  132;  24  X.  Y.  222;  Uuilla- 
ume  r.  Hamburg  etc.  I'ackett  Co.,  42  N. 
Y.  212;  Nelson  r.  U.  Co.,  48  N.  Y.  498; 
Nicholas  v.  R.  Co.,  4  Uun.  327;  Knell  v. 
United  States  Steamship  Co.,  33 X.  Y.  (S. 
C.)  423;  Nelson  f.  R.  Co.,  48X.Y.  498; 
Holsapple  v.  R.  Co.,  80  X.  Y.  275;  Scy- 
boltf.  R.  Co.,95X    Y.  562;  47  Am.  Rep. 

212 


75;  Steigel  v.  R.  Co.,  6  Hun.  34.5.  The 
course  of  decision  in  this  Stale  on  this 
subject  is  peculiar.  It  was  at  flr.st  held 
in  Xew  York  that  a  common  crrrier 
could  not  restrict  his  liabilities  by  any 
contract  in  any  respect;  Gould  i\  Hill, 

2  Hill  623;  Alexander  i\  Greene,  3  Hill 
20.  But  that  doctrine  was  soon  overruled. 
I'arsons  v.  Montcnth,  13  Barb.  353  (1851) ; 
Moore  r.  Kvans,  14  Barb.  524  (1852).  After 
some  lluctuations  in  the  decisions  caused 
by  the  refusal  of  some  of  tiie  judges  to 
a3.-*ent  to  a  rule  so  unjust  to  the  public, 
(see  I'arsons  f.  Moiileath,  l.'i  Barb.  .S53; 
Dorr  r.  New  Jersey  .'<leam  Nav.  Co.,  4 
Sandf.  136;  62  Am.  Dec.  125;  Alexan- 
der I'.  Greene,  7  Hill,  5.'j3 ;  Wells  v. 
Steam  Xav.  Co.,  8  N.  Y.  375;  Magnin  r, 
Dinsmore,3  J.  &  S.  182;6/</.  284;  Meine- 
man  v.  R.  Co.,  31  How.  I'r.  130  (1866) ; 
Keeney  v.  R.  Co.,  59  Barb,  lot;  allot 
which  cases  have  been  moaified  or 
overruled,)  the  settled  law  in  that  State 
is  as  stated  above.  But  even  in  Xew  York 
a  special  contract  is  required.  Mere 
notice  on  the  part  of  the  carrier  is  not 
suflicient.  Ilollisterr.  Xowlen.rj  Wend. 
234 ;  .S2  Am.  Dec.  455 ;  Cole  v.  Goodwin,  19 
Weud.251 ;  .32  Am.  Dec.  470;  Camden  etc. 
Trans.  Co.  v.  Belknap,  21  Wend.  354; 
t'lark  r.  Faxton,  26  Wend.  153;  I'owell  v. 
Myers,  20  Id.  591 ;  Alexander  c.  Greene, 

3  Hill,  9;  7  /(/.  53,{;  Dorr  v.  Xew  Jersey 
Steam  Nav.  Co.,  U  X.  Y.  485;  Westcott f. 
Fargo,  63  Barb.  349,  s.  c,  6  Lans.  319; 
Blossom  r.  Dodd,  43  X.  Y.  264;  Mercan- 
tile Mut.  Ins.  Co.  V.  Chase,  1  K.  D.  Smith, 
115;  Xevins  v.  Bay  State  Steamboat  Co., 

4  Bosw.  225;  I'rentice  v.  Decker,  49  Barb. 
21;Lirabarger  r.  Westcott,  49  Barb.  283; 
Sunderland  V.  Westcott,  2  Sweeny,  260; 
Slocnm  f.  Fairchild,  7  Hill,  292;  Madan 
V.  Sherard,  10  J.  &  S.  353;  73  N.  Y.  330; 
Marklin  v.  N.  J.  Steamboat  Co.,  7  Abb, 


CH.   XII.] 


MODIFICATION    OF  LIABILITY. 


§  139 


attempt  of  the  New  York  courts  to  distinguish  between 
the  negligence  of  the  corporation  acting  through  its 
president  and  board  of  directors,  and  the  negligence  of 
its  employes,  agents  or  servants,  has  received  little  favor 
in  the  courts  of  other  States.  Such  a  doctrine  applied 
to  a  corporation,  and  carried  to  its  logical  result,  would 
secure  it  against  ever}'  liability  for  the  neglect  of  every 
duty.  A  corporation  can  act  only  by  its  agents 
and  for  those  acts  in  the  line  of  their  employment  the 
corporation  must  be  responsible.  The  "American 
rule,"  therefore,  rejects  this  distinction  as  illogical  and 
unjust,^  and  having  no  foundation  in  reason  or  public 
policy.^ 

A  small  number  of  cases  seem  to  favor  permitting 
a  carrier  to  exempt  himself  from  I'ia'bill'ty  for  the  ordi- 
nary (negligence  of  his  servants,  while  refusing  a  right 
to  contract  for  exemption  for  tht'ir  gross  negligence. 
In  a  case  decided  in  Illinois  in  1876,  it  is  said:  "The 
doctrine  is  settled  in  this  court,  that  railroad  com- 
panies may,  by  contract,  exempt  themselves  from  lia- 
bility on  account  of  the  negligence  of  their  servants, 
other  than  that  which  is  gross  or  willful."^  The  doc- 
trine referred  to,  dates  from  two  early  cases  decided  by 


Pr.  (\.  S.)  229;  Woodrnif  c.  SherrarU,  !l 
lltiii.  822;  Uawson  v.  11  Co.,  2  Abb.  Pr.  (N. 
S.)  2'20;48N.  Y.  212. 

1  See  Welsh  r.  K.  Co.,  10  Ohio  St.  05; 
75  Am.  Dec.  4'JO;  111.  Cent.  U.  Co.  v.  Read, 
37111.484;  87  Am.  Dec.  260. 

li  "In  the  nature  of  things,  t-very  cor- 
poration mnst  act  solely  through  its 
agents,  and  that  their  powers  and  duties 
may  differ  in  degree,  it  seems  to  as, 
shonld  make  no  difference,  in  so  far  as 
duties  and  liabilites  to  passengers, 
whether  free  or  paying  full  fare,  are 
concerned.  The  true  inquiry,  at  last,  is, 
did  the  injury  result  from  the  negli- 
gence of  any  agent  of  the  corporation, 
while  acting  within  the  scope  of  his 
employment?    If  a  corporation  may  rc- 


lieTe  itself  from  liability  to  a  passenger 
for  the  negligence  of  one  or  more  classes 
of  agents,  why  may  it  not  for  the  negli- 
gence of  another  class?  All  of  a  cor- 
poration's employes,  from  the  highest 
official  to  the  humblest  laborer,  are  but 
agents.  Some  of  them  are  necessarily 
clothed  with  extensive  powe  .'s  to  make 
contracts  which  will  bind  the  corpora- 
tion in  reference  to  .nany  matters,  and 
to  control  its  operations,  while  others 
have  but  simple  labors  to  perform;  yet, 
none  of  them  ore  the  corporation, 
clothed  with  its  full  power,  ur  responsi- 
ble for  all  its  acts."  Gulf  etc.  II.  Oo.  v. 
McCiowan,  65  Tox.  645. 

3  Arnold  f.  R.  Co.,  8H  111.  278;   25   Am. 
Hep.  383. 

218 


O 
::>s 

zz 

< 
CO 


139 


MODIFICATION   OF   LIABILITY.  [PART  II. 


Mr.  Justice  Breese,  in  neither  of  wiiicli  was  sucli  a  rul- 
ing necessary.^  In  Alabama  and  Indiana,  this  distinc- 
tion has  been  made  in  cases  since  overruled.-  It  is 
repudiated  even  in  New  York;"*  and  is,  of  course,  disre- 
garded by  the  courts  which  have  adopted  the  American 
rule.  Carefulness  and  fidelity  are  essential  duties  on 
the  part  of  common  carriers  of  goods,  and  carriers  of 
passengers,  say  the  Supreme  Court  of  the  United 
States,  and  a  failure  to  perform  them  is  negligence,  for 
which  the  carrier  is  liable,  the  distinction  between  ordi- 
nary and  gross  negligence  being  unnecessary;^  for  any 
negligence  in  such  cases  may  well  deserve  the  epithet 


of  "gross.  "^ 

1  111.  Cent.  R.  Co.  r.  Morrison,  19  111. 
140(1857);  111.  Gent.  U.  Co.  i-.  Head,  37 
111.484;  87  Am.  Dec.  2(30.  In  the  Morri- 
son case  the  contract  was  for  the  car- 
riage of  live  .stock,  and  the  Court  placed 
ita  ruling  on  the  ground  tliat  "they 
could  not  be  stored  away  like  inanimate 
matter,  and  had  the  power  of  locomotion 
and  were  exposed  to  various  accidents, 
the  risk  of  which  tiie  company  paid  the 
shipper  to  assume."  Hut  as  we  have 
seen  (ante,  §  130),  a  carrier  is  not  at  com- 
mon law,  or  in  the  absence  of  contract, 
responsible  for  losses  of  this  kind.  In 
the  Head  case  the  suit  was  for  an  injury 
to  a  passenger  who  was  riding  on  a  free 
ticket,  by  the  terms  of  which  he  assumed 
all  risk  of  injury  from  the  negligence  of 
the  servants  and  afceuts  of  the  company. 
Said  Mr.  Justice  lirecsc:  "While  this 
agreement  did  not  exempt  the  railroad 
company  from  the  gross  negligence  of 
its  employes,  wc  are  free  to  say  that  it 
does  e.xerapt  it  from  all  olhor  species  or 
dogreoa  of  negligence  not  denominated 
gross  or  which  might  have  the  charac- 
ter of  recklessness.  For  such  unavoida- 
ble accidents  as  will  happen  to  the  best 
managed  railroad  trains,  this  agree- 
ment would  be  a  perfect  immunity  to 
the  company."  IJut  a  carrier  of  passen- 
gers is  not  an  insurer,  and  without  any 
special  contract  would  in  no  court  be 
held  responsible   for  an  "unavoidable 

214 


.iccident"  which  shall  happen  to  "the 
best  managed  railroad  trains."  .Subse- 
quent cases  in  this  Slate  recognize  the 
distinction  as  stated  in  the  Arnold 
case:  III.  Ont.  H.  Co.  r.  Adams,  42  111. 
474;  III.  Cent.  I{.  Co.  r.  Smyser,  .S8  III. 
354;  Erie  1{.  Co.  r.  Wilcox,  84  III.  28',t; 
Adams  i:\.  Co.  v.  Haynes,  42  III.  89; 
West.  Tran.  (^o.  i:  Xowhall,  24  111.  46fi; 
Chicago  etc.  II.  Co.  r.  Hale,  2  111' 
(App.)  150;  111.  Cent.  11.  Co.  r.  .Jute,  13 
III.  (App.)  424;  Wabash  etc.  U.  Co.  r. 
McCansland,  11  III.  (App.)  491;  Wabash 
R.  Co.  V.  Rrown,  .39  N.  10.  Rep.  273, 
though  in  others  it  is  evidently  over- 
looked: Hobkowitz  c.  .\(iams  Kx.  Co., 
5  Cent.  L.  .J.  58;  Adams  Kx.  Co.  v.  Stetta- 
ners,  61  111.  184;  14  Am.  Rep.  57.  In 
South  Dakota  it  is  said  in  a  late  case 
that  in  that  State  a  common  carrier  of 
property  or  passengers  may  limit  his 
liability  by  an  express  contract  signed 
by  the  parties,  except  as  to  gross  negli- 
gence, fraud,  or  willful  wrong  of  snch 
carrier  or  his  servants.  Meuerr.  U.  Co. 
69  N.  W.  Rep.  945. 

2  Thayer  v.  R.  Co.,  22  Ind.  26;  Mich, 
etc.  R.  Co.  r.  Ileaton,  37  Ind.  484;  South- 
ern Ex.  Co.  r.  Arniistend,  50  Ala.  .360. 
lioth  Indiana  and  Alabama  now  fol- 
low the  American  rule;  see  an(e,  §  137. 

sCragin  c.  New  York  Cent.  It.  Co.,  51 
N.  Y,  61 ;  10  Am.  Uep.  559. 

4  Railroad  Co.  r.l.ockwood.lS  Wall.357. 

.'  I'hila.  R.  Co.  i:  King,  14  How.  468. 


CII.  XII.] 


MODIFICATION   OF   LIABILITY. 


§139 


In  Pennsylvania,  a  carrier  may  not  contract  for  ex- 
emption from  tile  consequences  of  liis  own  or  liis 
agent's  uegllj'ence,^  but  lie  may  absolve  himself  from 
Lis  insurance  liability  by  a  general  notice  to  that  ef- 
fect brought  home  to  his  customer.-  A  similar  power 
was  given  the  c<mimon  carrier  in  South  Carolina"^  until 
1872,  when  the  legislature  prohibited  such  notices  al- 
together.' The  general  notice  is,  however,  still  per- 
mitted in  Pennsylvania,  though  as  early  as  1848,  the 
doctrine  of  the  earlier  cases  was  criticised  by  the  Su- 
preme Court,  which  expressed  its  regret  at  the  neces- 
sity of  following  it,"'  in  terms  very  like  those  used  by 
Mr.  Justice  Burrough,  thirty  years  earlier:  "I  lament 
that  the  doctrine  of  notice  was  ever  introduced  into 
Westminster  IIall."« 


1  Heckman  t:  Shonse,  5  Rawle  179;  28 
Am.  l»c'c.  iiJ3;  Atwood  r.  UelianceTraiiH. 
Co., 'J  Walts  87 ;  U  Am.  Dec.  no.'? ;  Camden 
etc.  11.  Co.  c.  Haiauuf,  16  Pa.  St.  6";  55 
Am.  Dec.  4,S1 ;  I'eun.  it.  Co.  i:  liutlcr,  57 
I'a.  .St.  .^35 ;  Peiin.  It.  Co.  r.  Henderson, 
51  I'a.  St.  .SI,');  I'enn.  It.  Co.  i:  McCloskey, 
23  I'a.  St.  521);  Goldey  v.  H.  Co.,  30  I'a.  St. 
542;  7'2  Am.  Dec.  703;  Kmpire  Trans.  Co. 
f.  Wamsutla  etc.  Oil  Co.,  63  I'a.  St.  14; 
3  .Am.  Rep.  515;  Am.  Kx.  Co.  f.  Sands,  55 
I'a.  St.  140;  Gordon  r.  Little,  8  .S.  A  It. 
G,i;i;  11  Am.  Dec.  6.i2;  Kitz  v.  H.  Co.,  3 
I'hila.  82;  I'owell  r.  It.  Co.,  32  I'a.  St.  414; 
7"<  Am.  Dec.  .504;  Lucesco  Oil  Co.  f.  It. 
('o.,  2  I'itts.  Itcp.  477;  Farnliam  v.  li.  (^o., 
55  I'a.  St.  53;  Am.  Kx.  Co.  v.  Second 
Nat.  Ilk.,  69  I'a.  St.  .394;  8  Am.  Hep.  208; 
Adams  Kx.  Co.  v.  Sharpless,  77  I'a,  St. 
5lij;  tiro^an  v.  Adams  Kt.  Co.,  114  I'a. 
St.  523;  00  Am.  Hep.  .309;  7  All.  Hep.  134; 
Penn.  II.  Co.  r.  Iliordan,  119  Pa.  St.  677;  4 
Am.  St.  If ep.  070 ;  13  Atl.  Hep.  324 ;  IJutfalo 
etc.  K.  Co.  r.  O'Uara,  9  Am.  &  ICng.  11. 11. 
Cas.  321. 

2  Kalngf.  Colder,  8  Pa.  St.  479;  49  Am. 
Dec.  533;  Iteckmtia  v.  Sliou.se,  supra; 
IliiiKhai'i  r.  Rogers, 0\V.  &  S,  495;  40  Am. 
Dec.  881;  Veruer  j'.  Sweitzer,  32  Pa.  St. 


208;  Pann.  R.  Co.  v.  Schwarzenberger,  45 
Pa.  St.  208;  5)4  Am.  Dec.  490;  Farnliam  v. 
R.  Co.,  supra;  Camden  etc.  II.  Co.  v.  Bal- 
dauf,  10  Pa.  St.  67;  55  Am.  Dec.  481. 

3  Porter  c.  Southern  E.xpress  Co.,  4  S. 
C.  135;  16  Am.  Rep.  764;  Levy  i'.  Southern 
K.x.  Co.,  4  S.  C.  234;  Swindler r.  Hilliard, 
2  Uicli.  (S.  C.)  201;  Baker  r.  IJrinson,  9 
Rich.  (S.  C.)  201 ;  07  Am.  Dec.  548;  Patton 
r.  Magrath,  Dudl.  151);  31  Am.  Dec.  552; 
Singleton  v.  Hilliard,  1  Strobh.  203. 

4  Gen.  Slats,  s.  c.  1872,  p.  3.36.  See 
Pieiiniout  Man.  Co.  c.  R.  Vo.,  19  S.  C.  353; 
Walliiigtord  v.  U.  Co.,  20  S.  C.  258. 

5  "The  expediency  of  recognizing  in 
him  [the  carrier]  a  right  to  do  so  by 
general  notice,  Buch  as  was  given  here, 
Uim  been  strongly  and  justly  questioned, 
and  in  some  of  our  sister  States  alto- 
gether denied.  Were  the  question  an 
open  one  in  Pennsylvania,  I  should,  for 
one,  unhesitatingly  follow  them  in  re- 
pudiaiing  a  principle  which  places  the 
bailor  absolutely  at  the  mercy  of  tlie 
carrier,  whom  in  the  vast  majority  of 
cases  be  can  not  but  choose  to  employ." 
Laing  v.  Colder,  8  Pa.  St.  479;  49  Am. 
Dec.  533. 

6  Smith  V.  Uorne,  Ilolt.  643  (1818). 


CO 


z 


215 


r 


§141 


MODIFICATION   OF  LIABILITY.  [PART  ]I. 


§  140.   Notices  Limiting  the  Carrier's  Liability.— 

The  rule  of  the  English  courts,  until  abrogated  by 
statute/  that  a  common  carrier  might  limit  his  lia- 
bility by  a  general  notice  to  his  customers,  finds  (with 
a  single  exception-),  no  support  in  the  American  courts. 
The  American  rule,  while  permitting  the  carrier  to  re- 
strict his  extraordinary  responsibility,  requires  that 
this  shall  '»e  d(  every  case  by  a  contract,  and  thrit 

a  notice,  e\eii  r    brought  home  to  him,  if  not  as- 

sented to  by  the  shipper,  will  be  of  no  avail.^ 

§  141.  Distii>eii*"n  be '^'"^eii  Notices  Limiting  Lia- 
bility and  Notices oi  Kri«sriui!)le  Regulations.— The 


1  See  ante,  §  136. 

2  Pennsylvania,  ante  §  139. 

3  Federal  Courts-Uailroad  Co.r.  Manu- 
facturing Co.,  16  Wall.  318;  Ayres  v. 
Western  Co.,  14  Blatcht.  9;  Seller  t-.The 
PaciUc,  1  Oregon  42'J;  The  I'aciflc,  1 
Deady  17;  The  May  Queen,  1  Xewb.  465; 
The  Majestic,  60  Fed.  Kep.  624.  Ala- 
bama.—Sou\.h.  Ex.  Co.  V.  Armstead,  50 
Ala.  350;  South.  Ex.  Co.  r.  Crook,  44  Ala. 
468;4  Am.  Uep.  140;  South.  Ex.  Co.  v. 
Caperton,  44  Ala.  101;  4  Am.  Uep.  118. 
California  —  Csi\.  Civil  Code,  §§2174, 
2175.  See  Hooper  v.  Wells,  27  (.'al.  11; 
86  Am.  Dec.  211,  decided  before  this 
provision  of  the  code  went  into  effect. 
ConnecMcut.— reck  I-.  Weeks,  34  Conn.  145. 
2>aA-o<o— Civ.Code,  §§  1'.'58, 1262.  Georgia- 
South.  Ex.  Co.  f.  Xewby.,  30  Ga,  635; 
91  Am,  I)PC.  783;  Purcell  v.  South.  Ex. 
Co.,  34  (ja.  315;  Mosher  r.  South.  Ex. 
Co.,3SGa.  37;  Wallace  r.  Matthews,  39 
Ga.  617;  Wallace  v  Saunders,  42  Ga.  486; 
Georgia  R.  Co.  i'.  Gann,  68  Gn.  S50; 
Central  It.  Co.  t:  Dwight  Man.  Co.,  75 
G».  6ii7;  Georgia  U.  Co.  v.  Spears, 
66  Ga.  485;  42  Am.  Uep.  81;  Cen- 
tral K.  Co.  V.  Bryant,  73  Ga.  722. 
/Hjnois.— West.  Trans.  Co.  v.  NewUall, 
24111.  466;  111.  Cent.  K.  Co..  v.  Franken- 
bnrg,  54  111.  88;  Merchants'  etc.  Trans. 
Co.  V.  Leyaor,  89  111.  43;  Merchants'  etc. 
Trans.  Co.  r.Jaesting,  89111. 152;  Western 
Trans.  Co.  v.  Hosking,  19  111.  ( App.)  607 ; 
111.  Cent.U.  Co.  v.  .Jonte,  13111.  (App. )42S. 
/K.(jta»a.— Indianapolis    etc.   It.    Co.,   v. 

21G 


Cox,  29  Ind.  360 ;  95  Am.  Dec.  640 ;  Evai  e- 
villeetc.  It.  Co.  r.  Young,  28  Ind.  516; 
/o;ra.— Stat,  of  1866  c.  13,  p.  121 ;  Code 
§1307.  AVn^ttc/tj/.— Louisville  etc.  U.  Co. 
V.  lledger.  9  Hush.  645 ;  Adams  Ex.  (;o.  c. 
Nock.,  2  Duv.  512;  Louisville  etc.  U.  Co. 
V.  Hrownlee,  14  IJnsh,  6911.  Jl/ntn«.— See 
ca.ses  under  sec.  137.  Maryland— ilcCoy 
V.  Erie  Trans.  Co.,  42  Md.  498.  Massa- 
rhttsctts.—Sec  oases  under  §  137.  Michi- 
gan—i^ee  cases  in  §  137.  Minnesota  ■- 
See  cases  §  137.  Mississip/ii. — Mo- 
bile etc.  11.  Co.  r.  Weiner,  49  Miss.  75;i; 
New  Orleans  etc.  It.  Co.  r.  Faler,58  5Ii;is. 
911.  Jl/isgourt.— Leveringr.  Union Trai s, 
Co.,  42  Mo.  88;  97  Am.  Dec.  320.  A' Iw 
Hampshire. — IJennett  v.  Dutton,  10  X.  II. 
481 ;  Moses  v.  It.  Co.,  24  N.  II.  71 ;  55  A  ti. 
Die.  222:  .32  N.  II.  523;  64  Am.  Dec.  3  11. 
New  Are.rico.—See  Selignian  r.  Armijo,  1 
N.  Mex.  459.  New  ybrA-.— IloUister  v. 
Nowlcn,  19  Wend.  234;  Dorrr.  N.  J.Xav. 
Co.,  U  N.  Y.  488.  North  Carolina.— 
Smith  V.  Jt.  Co.,  64  \.  C.  235;  Williams  r. 
ISranson,  1  Murphy,  417.  Oftio.— Union 
Mut.  Ins.  Co.  V.  It.  Co.,  1  Disney,  480; 
Jones  V.  Voorhees,  10 Ohio,  145 ;  Davidson 
V,  Graham,  2  Ohio  St.  131  and  cases 
cited  in  §  137.  '/>nnMS«e.— Walker  v. 
Skipwith,  Meigs  502;  33  Am.  Dec.  161. 
rea-a*.— Mo.  etc.  R.  Co.r.  Carter, 29 S.  W. 
Uep.  .5r,.5.  Termont.— See  cases,  ante  §  137. 
Virginia.— See  cases,  ante  §  137.  West  J'ir- 
S'tnirt.— See  cases, an<e§  137.  Wiaconain,— 
See  cases,  ante  §  137. 


CH.  XII.] 


MODIFICATION   OF   LIABILITY, 


§142 


American  rule,  however,  recognizes  a  well  settled  dis- 
tinction between  notices  which  seek  to  limit  the  lia- 
bility of  the  carrier,  and  notices  whose  object  is  to  ob- 
tain from  the  shipper  information  which  he  (the  car- 
rier), has  a  right  to  require.  Though  contained  in  the 
same  paper,  they  are  severable,  and  the  one  may  be 
rejected,  and  the  other  enforced.^ 

§  142.  Notice  as  to  Value  and  Character  of  Goods. 

— Notices  of  the  latter  class  have  regard,  generally,  to 
the  value  and  character  of  the  goods.  It  Avas  early  held 
in  England,  that  the  liability  of  a  carrier  being  founded 
on  his  reward,-  he  was  entitled  to  give  notice  that  he 
would  not  be  answerable  for  goods  of  a  costly  character 
or  above  a  certain  sum  unless  he  was  informed  of  their 
value,  for  he  had  a  right  to  accommodate  his  charges 
to  the  value  of  the  property  committed  to  his  '^are.^ 
The  law  on  this  point,  is  the  same  in  this  country,  al- 
though the  American  courts  place  the  justice  of  this 
exception  more  on  the  ground  of  the  right  of  the  car- 
rier to  have  this  kind  of  information,  and  the  fraud 
practiced  uj)on  him  in  withholding  it,  than  on  the  Eng- 
lish argument  as  to  the  consideration.  Where  the 
shipper  knows  that  the  carrier  demands,  and  has  «a 
right  to  demand,  information  concerning  the  value  of 
his  goods,  silence  on  his  i)art  is  the  same  as  an  assertion 
that  his  goods  are  of  no  greater  value  than  that  sug- 
gested by  the  carri<n'.  The  carrier  is  thereby  not  only 
deprived  of  his  adequate  reward,  but  is  misled  as  to 


1;' 

i    V 


a 

< 
.0 

Co 
r- 

:5: 


1  Oppeuheimer  v.  V.  S.  Ex.  Co., 69  111. 
62;  18  Am.  Uep.  596;  Moses  v.  U.  Co.,  24 
N.  n.  71;  55  Am.  Dec.  222;  The  >Ia 
jcstic,  GO  Fed.  Rep.  624;  see  Barroughs 
f.  B.  Co.,  100  Mass.  120. 

<  "His  warranty  and  insoranca  is  in 
respect  to  the  reward  he  is  to  receive; 
and  the  reward  ought  to  be  proportion- 
able to  the  riek,"    Mansfletd,  0.  J.,  in 


Gibbon  r.  Paynton,  4  Bnrr.  2278  (1769). 
"  *Tis  the  reward  that  makes  the  carrier 
answerable."  Holt,  0.  J.,  in  Tyly  v. 
Monice,  Carth.  485  (1699).  "The  tme 
principle  of  a  carrier's  being  answera- 
ble is  the  reward."  Aston,  J.,  in  Gib- 
bon f.  Taynton,  8i//)ra. 
3  Batson  r.  Douuvau,  4  B.  and  Aid.  21. 

217 


§142 


MODIFICATION   OF   LIABILITY.  [PART  II. 


the  degree  of  care  and  diligence  which  he  should  exer- 
cise.* Thus,  a  notice  by  the  carrier  that  he  will  not  be 
liable  for  a  greater  amount  than  $50  o"  |100  or  any 
other  sum  on  i\ny  article,  package  or  property,  unless 
the  true  value  is  given,-  (in  which  case  he  will  have  the 
right  to  increase  his  charges),  or  that  he  Avill  not  be 
liable  beyond  the  invoice  or  declared  value  of  the 
goods,^  or  only  for  their  value  at  the  place  and  time 
of  shipment,^  is  valid  and  binding  on  the  shipper,  pro- 
vided it  was  brought  to  his  knowledge. 

If  the  carrier  notifies  the  shipi)er  that  he  will  not 
be  liable  for  any  article  of  more  than  a  certain  value 
unless  specially  entered  as  such,  and  paid  for  accord- 
ingly, and  these  conditions  are  not  complied  with,  the 
owner  cannot  recover  anything — not  even  the  smaller 
value  excluded  in  the  notice.'*  F»ut  where  the  terms  of 
the  notice  are  that  the  carrier  will  not  be  liable  beyond 
a  certain  sum,  that  sum  may  be  recovered  in  any 
event.*^ 


1  Cole  f.  Goodwin,  19  Wend.  251;  32 
Am.  ]>ec.  470;  McMillan  v.  11.  Co.,  IG 
Mich.  7!»;93  Am.  Dec.  iOS;  Moses  v.  K. 
Co.,  24  N.  n.  71;  55  Am.  Dec.  222;  Fish  v. 
Chapman,  2  Ua.  349;  46  Am.  Dec.  39.S; 
Western  Trans.  Co,  v.  Newhall,  24  111. 
4GG;  76  Am.  Dec.  760;  .Indson  t'.  R.  Co.,  6 
Allen,  485;  38  Am.  Dec.  G4G;  Kallman  r. 
United  States  Exp.  Co.,  3  Kan.  205; 
Farmers'  ISank  v.  Champlain  Trans. 
Co.,  23  Vt.  18G ;  56  Am.  Dec.  68 ;  Maguin  v. 
Din.sraore,fi2  N.  y.  35;  19  Am.  Rep.  442; 
Lawrence  v.  R.  Co.,  36  Conn.  G3 ;  Fibel  v. 
Livingston, 64 iJarb.  179;  The  MayQueen, 

1  Newl).  Adni.  4G5;  New  Jersey  .steam 
Nav.  Co.  V.  Merchants'  liank,  6  How. 
344;  Hopkins  v.  Westcott,  G  IJlatcht.  64; 
Oppenheiraer  v.  U.  .S.  Exp.  Co.,  G9  111.  G2 ; 
18  Am.  Rep.  596;  Graves  v.  R.  Co.,  137 
Mass.  3;{;  50  Am.  Rep.  282;  The  Bermuda, 
29  Fed.  Rep.  ,S79;  Mather  r.  Am.  Kx.  Co., 

2  Fed.  Rep.  49;  Smith  v.  R.  Co.,  64  N.  C. 
2,15;  Williams  r.  Uranson,  1  Mnrphy,417; 
Brehmcr.  Adams  Er.  Co.,  25  Md.  328; 

218 


Sonth.  etc.  R.  Co.  r.  Ilenlein,  52  Ala.  fiOG; 
aliter  in  Iowa  under  its  statute:  Hart 
V.  R.  Co.,  69  la.  485;  McClure  v.  R.  Co.,  62 
la.  600. 

2  Moses  V.  R.  Co.,  24  X.  n.  71 ;  55  Am. 
Dec.  222 ;  Dana  r.  R.  Co.,  50  Uow.  Pr.  428 ; 
Texas  etc.  R.  Co.  v.  Caldwell,  3  Tex.  Civ. 
Cas.  4.S7 ;  St.  Louis  etc.  R.  Co.  v.  Lesser, 
46  Ark.  2.36;  St.  Lonis  etc.  R.  Co.,  r. Weak- 
ly, 50  Ark.  397, 8  S.  W.  Rep.  134  and  cases 
cited  in  former  note. 

»Thc  Lydian  Monarch,  23  Ked.  Rep. 
298;  The  Uadji,  18  Fed.  Rep.  459. 

4  Lonisville  etc.  R.  Co.  v.  Oden,  80  Ala. 
.18 ;  Chicago  etc.  R.  Co.  v.  Harmon,  17 
111.  (App.)640. 

t>  Izett  V.  Mountain,  4  East  371 ;  Nichol- 
son r.  Willan,  5  East  607;  Vate  v.  Willan, 
2  East  128;  Clay  v.  Willan,  1  H.  Black  298; 
Batson  v.  Donovan,  4  Barn.  &  Aid.  21; 
Harris  v.  I'ackwood,  3  Tannt.  264 ;  Bald- 
win V.  Collins,  9  Rob.  468. 

6  Clarke  r.  <iray,6  Ea6t5G4;  Hart  r.  R. 
Co.,  2  McCrary  .S33. 


. 


oil.  XII.] 


MODIFICATION  OF  LIABILITY. 


§142 


It  is  held  in  u  number  of  cases,  tliat  notwithstanding 
the  limitation  as  to  value,  the  carrier  is  still  respon- 
sible for  the  full  value  of  the  property  if  it  is  lost 
through  negligence — in  other  words,  that  the  notice, 
or  even  a  contract  between  the  parties,  in  reference  to 
the  value,  can  not  extend  beyond  the  insurance  liabil- 
ity of  the  carrier.^  But  in  most,  if  not  all  of  these 
cases,  tlie  valuation  inserted  in  the  contract  was  put 
there  by  the  carrier  in  accordance  with  his  own  cus- 
tom or  regulation,  and  without  reference  to  the  real 
value  of  the  ]iroperty  transported;  or  the  shipper  was 
forced  to  agree  to  a  false  valuation;-  or  there  were  no 
higher  rates  charged  for  property  above  the  valuation.-'' 


1  Alabama  etc.  U.  Co.  r.  Little,  71  Ala. 
611 ,  .Mobile  etc.  U.  Co.  r.  UopkiDS,41  Ala. 
4SS;  !M  Am.  Dec.  607;  South,  rtc.  I{.  Co.  v. 
Uculeia,B'2  Ala.  606;  56  Ala.  363;  Over- 
land Slail  Co.  i'.  Carroll,  7  Colo.  43;  1 
I'ac.  Rep  6S2;  Oppenbeimer  r.  U.  S.  Ex- 
Co.,  69  111.  b2;  18  Am.  Kep.  5'J6;  Adams 
Kx.  Co.  r.  .Stettaner8.61  111.  184;  14  Am. 
Kep.  57;  Kansas  City  R.  Co.  v.  Simpson, 
ao  Kas.  645;  46  Am.  Hep.  104;  2  Pac.  Rep. 
821;  Kallman  v.  V.  S.  Ex.  Co.,  3  Kas. 
1105;  Orndorff  f.  Adams  Ex.  Co.,  3 
IJnsh.  194;  <)6  Am.  Dec.  207;  Monlton  v. 
It.  Co., 31  Minn.  85;  47  Am.  Rep.  781;  16  N. 
W.  Rep. 497; Chicago  etc.  R.  Co.  r.  Abels; 
60  Miss.  1017;  South.  Kx.  Co.  r.  Moon, 
.W  Aliss.  822;  Westcott  r.  Fargo,  61  N.  V. 
524;  19  Am.  Rep.  300;  Westcott  v.  Fargo, 
63  JJarb.  .349;  6  l.ans.  319;  U.  S.  Ex.  Co.  i: 
lianhnian,28  Ohio  St.  144;  American  Ex. 
Co.  t'.  Sands,  55  I'a.  St.  140;  Adams  Ex. 
Co.  V.  Holmes,  9  All.  Rep.  166  (Pa.) ; 
Grogan  v,  Adams  Ex.  Co.,  114  Pa.  St. 
528;  7  Alt.  Rep.  134  (which  must  be 
considered  as  overruling  the  earlier 
cases  of  Farnbam  f.  R.  Co.,  55  Pa. 
St.  53;  Elkins  j-.  Trans.  Co., 81  Pa.  St.  315; 
Newberger  v.  Howard,  6  Phila.  174) ; 
Coward  v.  R.  Co.,  16  Lea.  225;  57  Am. 
Kep.  226;  South,  etc.  R.  Co.  r.  Muddox, 
12.  S.  W.  Kep.  815;  Itlack  v.  Trans.  (Jo.,  55 
Wis.  319;  42  Am.  Rep.  713;  13  N.  W.  Kep. 
244. 

'■i  Kansas  City  etc.  R.  Co.  v.  Simpson, 


supra.    East  Tenn.  K.  Co.  v.  Johnson, 
US.  E.  Rep.  SC.)  (Tenn), 

8  In  McFadden  v.  R,  Co.,  92  Mo.  343; 
4  S.  W.  Rep.  689,  the  Court  say ;  "On 
the  one  hand  it  may  be  unjust,  unrea- 
sonable and  repugnant  to  sound  princi- 
ples of  fair  dealing  for  the  shipper  to 
reap  the  benefits  of  a  contract  by  which 
he  secures  a  lower  rate  than  the  carrier 
might  reasonably  charge  for  the  service 
rendered  if  there  be  no  loss  and  to  re- 
pudiate it  in  case  of  loss.  Where  the 
sh  pper  procures  the  lawful  rates  of  the 
carrier  to  be  reduced  in  express  con- 
sideration of  the  agreed  value  upon 
which  the  compensation  is  based  he  is 
under  numerous  authorities  some  of 
which  are  cited  held  to  be  estopped  to 
say  the  value  is  greater  when  tae  loss 
occurs.  On  the  other  hand  it  would,  we 
think,  be  no  less  unfair,  unreasonable 
and  unjust  that  the  carrier  without  any 
sacrifice  of  his  interest  or  lawful  de- 
mands or  diminution  of  his  lawful 
charges,  should  secure  without  con- 
sideration therefor  such  important  ad- 
vantages and  release  of  liabilities  to 
which  he  would  otherwise  be  subjected 
under  the  law  "  *  *  *  "In  the  case 
now  before  us  there  was  no  preterse 
that  the  plaintiff  or  his  agent  fraudu- 
lently concealed  or  falsely  represented 
the  real  value  of  the  mules.  They  were 
delivered  without  any  inquiry  or  repre- 

219 


a 


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CO 

3 


.^M 


m 
•ill 


■r  i 


§142 


MODIFICATION  OF  LIABILITY. 


[part  II. 


Where  there  is  no  advantage  taken  of  the  shipper  who 
represents  or  agrees  that  the  goods  delivered  are  of  a 
certain  value,  and  the  carrier,  for  this  reason  gives  a 
reduced  rate,  the  former  is  estopped  from  proving  a 
greater  value,  even  where  they  have  been  destroyed 
through  the  carrier's  negligence.  Such  is  the  rule  in 
the  Supreme  Court  of  the  United  States,  of  Massachu- 
setts and  elsewhere.  Although  one  of  the  indirect  ef- 
fects of  such  an  agreement  is  to  limit  the  responsibilily 
of  the  carrier  for  the  negligence  of  his  servants,  this 
is  not  its  purpose.  It  does  not  induce  want  of  care,  b  it 
simply  exacts  from  the  carrier  the  measure  of  care 
due  to  the  value  agreed  upon.^  But  on  the  other  hand, 
where  there  is  no  value  agreed  upon,  a  stipulation  that 
the  liability  of  the  carrier  shall  not  exceed  a  certain 


sentations  as  to  valne.  They  may  have 
been  a  somewhat  choice  lot  of  mules.bnt 
they  were  not  of  extraordinary  or  fanci- 
fnl  value  snch  as  blooded  stock  or  on 
account  of  speeil  or  other  qualities  as  in 
the  liar  -ey  case  and  there  is  no  pretense 
that  defendant  was  in  any  way  deceived 
as  to  their  value  or  mislead  as  to  the  de- 
(tree  of  care  they  would  require.  On  the 
other  hand  the  recital  that  the  given 
rate  was  a  reduced  rate  was  in  fact  false 
as  was  shown  by  the  evidence  of  the 
station  agent  who  testified  it  was  the 
usual  rate  charged  all  shippers.  It  in 
the  one  case  it  is  competent  for  the  car- 
rier to  show  that  the  real  value  of  the 
projierty  was  concealed  and  the  lower 
rate  thus  secured  by  the  fraud  or  de- 
ceit of  the  shipper,  why  may  not  the 
shipper  be  pciinitted  to  show  that  the 
alleged  reduced  rate  in  consideration  of 
which  he  surrendered  the  obligation  im- 
posed by  law  upon  the  carrier  as  an  in- 
surer of  the  property  was  false  and  in 
fact  no  reduced  rate  at  all.  It  may  be 
that  plaintiff  was  not  deceived  by  it  at 
the  time  as  he  did  not  ask  for  or  sup- 
pose he  was  getting  a  reduced  rate,  but 
if  the  pretended  lower  rate  was  the 
nsual  rate  and  known  to  be  such  to  both 

220 


parties  it  would  work  a  fraud  upon  the 
rights  of  plaintiff  under  the  law  if  the 
defendant  were  permitted  to  treat  it  as 
a  lower  rate  and  to  thus  deprive  plain- 
tiff of  important  rights  and  thus  secure 
release  of  part  of  its  liability  by  reason 
thereof.  Under  the  circumstances  of 
this  case  there  was  we  think  no  con- 
sideration for  the  limited  valuation 
placed  upon  the  mules  by  defendi  tit 
and  the  stipulation  in  that  respect  is 
we  think  void  as  releasing  the  can- er 
from  the  full  and  reasonably  adequtte 
liability  for  its  negligence." 

1  Hart  V.  U.  Co.,  112  U.  S.  3.S1 ;  2  Slc- 
Crary,  3.S3;  Muser  i-.  Holland,  17  Blatclif. 
412;  Hopkins  r.  Westcott,6  Blatchf.  r,4; 
Earnest  I'.  Ex.  Co.,  1  Woods,  573;  The 
Alene,  25  Fed.  Kep.  662;  The  Hadji,  18 
Fed.  Kep.  459;  The  Lydean  Monarch,  23 
Fed.  Kep.  298;  Graves  v.  R.  Co.,  137  Mass. 
33;  60  Am.  Rep.  282;  Hill  v.  R.  Co.,  144 
Mass.  284 ;  10  N.  B.  Rep.  836;  Squire  r.  R. 
Co., 98  Mass.  239;  Louisville  etc.  R.  Co.  r. 
Oden.,80Ala.  38;  Louisville  etc.  R.  Co.  v. 
Sherrod,  84  Ala.  178;  4  South  Rep.  nO; 
Harvey  r.  R.  Co.,  74  Mo.  538;  Bro\»n 
V.  R.  Co.,  18  Mo.  (App.)  668;  Rosen- 
feld  V.  R.  Co.,  103  Ind.  121;  53  Am.  St  p. 
600;  2  N.  E.  Rep.  344. 


CI(.  XII.] 


MODIFICATION  OF  LIABILITY. 


§14B 


amount,  will  have  no  effect  upon  a  uejjligont  loss  or 
iiijurj'.^ 

§  143.  Methods  of  Giving  Notice.  —  Advertise- 
ments and  Placards.  — Tliouj;h  it  may  sometimes  be 
possible  to  charge  the  custoii  ■;  with  knowledge  of  a 
notice  published  by  the  carrier  in  a  newspaper,  yet  in 
the  large  majority  of  cases,  it  would  be  so  ditHicult  that 
it  has  been  seldom  attempted  in  the  courts.  The  rea- 
son is,  that  there  is  no  presumption  that  even  a  sub- 
scriber to  a  newspaper  reads  all  of  its  contents.^ 
>J either  'are  notices  placed  upon  posted  placards  or 


1  Abrams  r.  U.  Co.  58  N.  W.  Rep.  780 
(Wis.)  the  court  saying:  "Tliecoiirt  re- 
fuicd  to  allow  the  plaintitf  to  take  jndg- 
mfciit  for  the  value  of  the  horses  as  found 
by  the  verdict.  In  doing  so  the  court 
gave  effect  to  the  clause  of  the  contract 
wht'rein  it  rtas  agreed  that  the  liability 
of  the  company  should  not  in  any  event 
exceed  $100  per  head.  It  will  be  ob- 
served that  that  amuuut  ia  not  named  as 
the  value  of  each  horse,  and  the  contract 
contains  no  stipulation  nor  agreement 
as  to  the  value  of  the  horses,  or  any  of 
them.  In  IJart  v.  U.  (Jo..  112  U.  S.  331,  6 
8np.  Ct.  Uep.  151,  the  plaintiff's  recovery 
was  limited  to  his  "agreed  valuation" 
in  the  contract.  The  same  was  true  in 
Graves  v.  U.  Co.,  137  Mass.  33,  where  it 
was  held  "that  the  shipper  was  estopped 
to  claim  more  thau  the  agreed  valua- 
tion of  the  goods."  To  the  same  effect: 
Hill  V.  U.  Co.,  144  Mass.  286, 10  N.  E.  Uep. 
836;  Urownt'.  Steamship  Co.,  147  Mass. 
68, 16N.  E.  Uep.  717;  Alair  v.  Uailroad 
Co.,  (Minn.)  54  N.  W.  Uep.  1073.  But 
where,  as  here,  there  is  an  absence  of 
any  agreed  valuation  in  the  contract, 
and  the  limitation  is  merely  as  to  the 
amount  of  recovery  for  damages  caused 
by  the  defendant's  negligence, the  case 
comes  within  the  general  rule  to  the  ef- 
fect that  the  company  cannot  contract 
for  exemption,  either  in  whole  or  in 
part,  from  liability  for  the  negligence  of 
itself  or  its  employes.  Id. ;  Boehl  v.  K. 
Co.,  44  Minn.  191,  46  N.  W.  Uep.  333;  Mc- 
Fadden  v.  U.  Co.,  92  Mo.  344, 4  S.  W.  Rep. 


689;  Weiller  r.  U.  Co.,  134  Pa.  .St.  310;  19 
Atl.  Uep.  702;  Ashendon  v.  It.  Co.,  5 
Exch.  I)iv.  190,  31  Moak,  Eng.  Uep.  644; 
Uicksou  V.  U.  Co.,  18  t,).  1$.  Uiv.  17G.  This 
is  in  harmony  with  the  rule  hold  in 
Black  i:  Trans.  Co.,  53  Wis.  311);  13  N.  W. 
Jtep,  244.  11  is  to  be  remembered  that 
the  shipper  and  the  railroail  do  not 
contract  upon  equal  terms.  I'ractically 
the  shipper  is  bound  to  submit  to  whal- 
I'vcr  conditions  are  t'xiictcd  by  the  car- 
rier. To  be  lawful,  such  conditions  must 
be  reasonable.  A  contract  relieving  a 
carrier  wholly  or  partially  from  liability 
for  dania^'e  caused  by  its  own  nesliKeuce 
is  unreasonable.  We  iinist  hold  that  the 
plaintiff  was  entitled  to  judgment  for  the 
amount  of  his  verdict." 

•i  .Munnr.  Marker,  2 Stark.  25,';;  Uiley  v. 
lloriie,  3  lllug.  2;  Jiidsoii  v.  II.  Co.,  tl 
Allen,  4H,^;  Mich.  Cent.  U.  Co.  r.  Hale,  6 
I\lieh.  243 ;  Baldwin  f.  Collins,  9  Uob.  4«8 ; 
Barney  r.  Prentiss,  4  H.  &  J.  317;  7  Am. 
IJec.  670.  In  Baldwin  r.  Collins,  it  is 
said:  "The  mere  publication  of  a  notice 
in  one  or  more  newspapers,  no  matter 
how  long  the  time,  of  an  intention  not  to 
be  responsible  for  particular  articles, 
unless  upon  disclosure  of  contents  and 
value,  is  not  sufficient  to  release  the  car- 
rier from  responsibility.  The  notice 
must  be  brought  home  to  the  shipper  or 
depositor.  The  circumstance  of  its  be- 
ing published  in  several  newspapers  is 
one  fact ;  that  the  party  was  a  regular 
subscriber  to  and  reader  of  one  or  more 
of  those  papers  is  another  fact." 

221 


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r- 

TO 


§144 


MODIFICATION  OF  LIAHILITY. 


[part  II. 


signs  of  niiK'h  more  value.*  It  does  uot  follow  tluit  a 
man  who  sees  a  sign  reads  what  is  upon  it,-  or  tluit 
because  notices  are  posted  conspicuously  in  stations, 
in  cars  and  uimmi  b(mts,  peivons,  though  being  in 
those  places,  read  theni,-"'  or  though  they  read  some 
of  them,  that  they  read  them  all.^ 

§  144.    Notices  in  Receipts  and  other  Voucliers.— - 

The  unfriendliness  of  the  English  courts  to  notices  by 
advertisement  and  placard  having,  a.s  we  have  st\*ii, 
early  become  manifest,  the  carrier  had  recourse  to 
other  means.  In  1828  Chief  .lustice  l?est  suggested 
that  if  carriers  would  but  cUdiver  to  their  customers 
at  the  time  of  receiving  their  goods,  written  memo- 
randa of  the  terms  on  which  they  would  carry,  the 
vexed  question  of  notices  would  be  euded.^  The  same 
opinion  had  been  expressed  by  the  Court  of  Common 
Pleas  in  1825,"  and  by  Lord  Ellenborough,  in  1817/ 
who  said  that  in  this  way  the  difficulty  of  proving 
knowledge  of  the  notice  would  be  removed,  Bailey,  J., 
adding,  that  if  a  carrier  never  took  in  a  parcel  without 


1  Brooke  v.  Pickwirk,  4  Rinp.  218; 
Draysont'.  noinc,  27  \V.  K.  79H;  Clayton 
v.  Unnt,  2  Camp.  17;  Butler  v.  Heamc, 
2  Camp.  415. 

2  In  Kerr  r.  Willan,  6  M.  &  S.  50 ;  2  Stark. 
63,  in  onlrrto  aff(M:t  tln'  plaintiff  with 
knowlcdpo  of  a  notice  lltniting  the  car- 
rier's liability,  It  was  proved  that  it  was 
painted  on  a  board  and  linnpr  np  in  the 
defendant's  oflicc.  The  plaintiff's  ser- 
vant testilied  that  he  had  taken  poods  to 
the  ollice,  had  frcfjnently  been  there  be- 
fore, and  had  seen  the  board,  bntthathe 
did  not  suppose  there  wasanythinfjnpon 
it;  that  althoufth  he  could  read,  he  had 
never  in  fact  read  the  notice  nntil  after 
the  loss.  I/)rd  EUenborongh  said: 
"Yon  cannot  make  this  notice  to  this 
non-snpposing  persion." 

SHollister  v.  Nowlen,  19  Wend.  234; 
32  Am.  Dec.  415;  Macklin  v.  New  Jersey 
Steam.  Co.,  7  Abb.  Pr.  (U.  S.)  229;  Glea- 

222 


son  f.  Goodrich  Trans.  Co.,  it2  Wis.  85; 
Lake  Shore  etc.  H.  Co.  f.  Greenwood,  79 
Pa.  St.  373;  Cantling  r.  H.  Co.,. '•4  -Mo.  :<85; 
14  Am.  Kep.476;  Peck  r.  Weeks,  34  Conn, 
145;  Walker  r.  Jackson,  10  M.  &  W.  161; 
IJalt.  etc.  U.  Co.  r.  Urady,  32  Md.  333. 

4  There  was  posted  np  in  a  car  notices 
limiting  the  company's  liability  for  pas- 
sengers' baggage  and  aa  to  smoking  in 
the  cars,  standing  on  the  platforms,  and 
pntting  heads  and  arms  out  of  the  win- 
dows. The  plaintiff,  a  passenger  in  the 
car,  admitted  that  be  had  read  the  no- 
tice as  to  smoking  and  standing  on  the 
platform.  It  was  held  that  there  was 
no  presnmption  that  he  had  seen  the 
notice  as  to  baggage.  Malone  v.  R.  Co., 
12  Gray  388 ;  74  Am.  Dec.  598. 

«  Riley  r.  Home,  5  Bing.217. 

8  Rowley  v.  Home,  3  Ring.  2. 

7  Kerr  v.  Willan,  6  M.  &  S.  16*;  2  Stark. 
S3. 


. 


en.  XII.] 


MODIFICATION  OF  LIABILITY. 


§  140 


a  receipt,  he  would  be  secure.  TIm?  English  carrier  was 
not  slow  in  acting  upou  these  suggestious,  and  nearly 
all  the  American  cases  where  notices  of  this  character 
have  been  sustained,  find  the  iic.icc  coutaine*!  in  a 
bill  of  lading,  a  printed  recei])i,  a  cli  ck,  (»r  a  ticket.' 
Courts  and  juries  are  liberal  in  inferring  knowledge  on 
the  part  of  shippers  and  cr.stonjers  from  the  receipt 
by  tluMu,  witlH)nt  objcttion,  of  vouchers  of  this  char- 
acter.- 

§  145.  Notice  Assented  to  Constitutes  a  Contract. 

— Notices  of  the  character  just  spoken  of,  bind  the  cus- 
tomer, provided  only  that  it  be  shown  that  they  wore 
brought  to  his  knowledge.  But  as  a  notice  of  limited 
liability  is  regarded  as  a  proposal  for  a  contract  which 
the  shipper  may  accept  or  reject,  it  follows  that  a  no- 
tice by  a  carrier  to  a  shipper  that  he  will  not  be  resjjon- 
sible  as  an  insurer,  if  assented  to  by  the  latter,  becomes 
binding  upon  him,  for  it  amounts  to  a  contract,  which 
is  all  that  the  American  rule  requires."' 


^  140,  Assent  not  Inferred  from  Mere  Knowl- 
edge. — The  assent  will  not  be  inferred  from  the  fact 
that  knowledge  of  such  notice  on  the  part  of  an  owner 
or  consignor  of  goods  is  shown.  The  evidence  must  go 
farther  and  be  sufficient  to  show  that  the  terms  on 
which  the  carrier  proposed  to  carry  the  goods  were 
adopted  as  the  contract  between  the  parties,  according 
to  which  the  service  of  the  carrier  was  to  be  rendered.^ 


1  Shelton  V.  R.  Co.,  69  N.  Y.  258;  36  \. 

y.  (S.  c.)  527. 

2  Oppenheimer  t>.  U.  8.  Ex.  Co.,  69  111. 
62. 

3  Blamenttaal  v.  Brainerd,  .18  Vt.  402. 

*  litnckland  v.  Adams  Kx.  Co.,  97  Mass. 
124;  Moses  r.U.  Oo.,24N.  H.  71;  McMil- 
lans. R.  Co.,  10  Mich.  70;  Mann  v.  lUi- 
ebard,40Vt.  226;  Bean  v.  Green,  12  Me. 


422;  Sager  v.  R.  Co.,  31  Me.  228;  Fille- 
brownr.  R.  Co., 65  Me.  4G2;  Little  v.  R. 
Co.,  66  Me.  2.S9 ;  Mobile  etc.  R.  Co.  v.  ^yei- 
ner,  49  Miss.  725;  Western  Trans.  Co.  f. 
Newhall,24IlI.4CC;Rlnnienthal  I'.  Brain- 
erd, 28  Vt.  247;  Farmers'  etc.  Bank  v. 
Chnmplain  Trans.  Co  ,  18  Vt.  131 ;  23  Vt 
186. 

223 


§147 


MODIFICATION  OF  LIABILITY.  [PART  II. 


If  a  person,  after  seeing  a  notice  that  tlie  carrier  re- 
ceives goods  only  on  certain  terms  limiting  his  liability 
delivers  them  to  be  carried,  is  this  an  implied  assent 
on  the  part  of  the  shipper  to  the  terms  of  the  notice? 
The  answer  is,  that  it  is  not.  The  owner  has  a  right 
to  insist,  notwithstanding  the  notice,  that  the  carrier 
shall  take  the  goods  under  his  common  law  responsi- 
bility, for  the  carrier  is  under  a  legal  obligation  to  re- 
ceive and  convey  the  goods  safely.  Under  such  cir- 
cumstances, the  presumption  is  stronger  that  the  ship- 
per intends  to  insist  on  his  legal  rights,  than  that  he 
was  willing  to  yield  to  the  wishes  of  the  carrier.  If 
a  coat  be  ordered  from  a  tailor  after  he  has  given  the 
Customer  notice  that  he  will  not  furnish  such  an  ar- 
ticle at  less  than  flOO.  the  assent  of  the  customer  to 
pay  that  price  would  be  implied;  but  if  the  tailor  had 
been  under  a  legal  obligation  to  furnish  coats  at  |50, 
no  such  implication  would  arise.' 

§  147.  Accepting-  Papers  Containing*  Limitations 

or  Conditions. — Where  conditions  or  limitations  are 
contained  in  a  paper,  which  paper  is  accepted  as  the 
contract  between  carrier  and  shipper,  such  conditions 
or  limitiitions  are  presumed  to  be  agreed  to  by  the 
i^bipper,  from  the  very  fact  that  he  accepts  it  without 
dissent;'-  and  he  is  bound  by  them,  even  although  he 
did  not  read  them.^     And  whether  the  paper  must  be 


1  nollister  r.  Nowlen,  19  Wend.  234;  32 
Am.  Doc.  465. 

2  "Where  a  contract  is  to  bo  signeil 
only  by  one  party,  the  evidence  of  assent 
to  its  terms  by  tlie  otlier  party  consists 
usually  in  his  rcccivin),'  and  actinjr  upon 
it.  This  is  till-  case  with  deeds  poll,  and 
with  various  elassos  of  familiar  con- 
tracts, and  the  evidence  of  assent  de- 
rived from  the  acceptance  of  the  con- 
tract without  objection,  is  commonly 
conclusive."  Cooley,  J,,  in  McMillan  r. 
K.  Co.,  16  Mich.  79. 

224 


3  Kirklaud  v.  Dinsmore,  62  N.  Y.  171, 
reversing  4  T.  &  V.  304;  Grace  v.  Adams, 
1(10  Mass.  605;  Iloadley  r.  North.  Trans. 
Co.,  116  Mass.  .H04;  Uill  r.  H.  Co.,  73  N.  Y. 
361 ;  29  Am.  Hep.  163;  Gerniania  Firo  Ins. 
Co.  r.  U.  Co., 72 N.  Y.  90;  Itoylan f.  11.  Co., 
10  S.  0.  Hep.  50;  Snider  r.  Adams  Kx.  Co., 
03,  Mo,  376;  MulliRnn  r.  U.  Co.,  36  la.  181; 
St.  Txjiiis  etc.  II.  Co.  r.  Weakley,  50  Ark. 
ft'.t";  8  S.  W.  K«p.  134;  Morrison  •.  Con- 
struction (Jo.,  44  Wis.  405;  28  Am.  Kep. 
699;  Uavis  o.  U.  Co.,  29  Atl.  Ucp.  313  (Vt.). 


CII.  XII.] 


MODIFICATION  OF  LIABILITY. 


148 


considered  in  law  as  being  understood  by  both  parties 
as  containing  tlie  contract  between  them,  depends  upon 
its  form  and  customary  use.* 

§  148.  Bills  of  Lading:.  —  In  the  maritime  law, 
the  bill  of  lading  was  always  regarded  by  the  courts 
as  the  contract  between  the  parties,  and  the  shipper, 
by  accepting  it,  was  conclusively  presumed  to  assent 
to  its  conditions,  because  the  usages  of  business  would 
naturally  lead  him  to  infer  that  the  document  which 
was  his  muniment  of  title,  qiiUHi  negotiable,  and  on 

'  .>  faith  of  which  he  might  borrow  money,  was  a  con- 
tract and  not  a  mere  i^ceipt.-  The  inland  bills  of  lad- 
ing now  customarily  issued  by  railroads,  are  of  the 
same  character,  and  it  is  well  established  that  per- 
sons receiving  them  are  bound  to  know  that  they  con- 
tain the  terms  on  which  their  property  is  agreed  to  be 
carried;  and  their  acceptance  is  sufficient  evidence  of 
assent  to  their  terms.^ 


1  "The  real  ilistiiictiou  is  this:  If  tins 
paju'r  ilolivori'd  to  the  sliipin'i'  by  the 
carrier  contains  the  terms  of  tlie  con- 
tract between  them  and  is  accepteil  by 
the  shipper,  it  is  conclnsive  evidence  of 
tlie  contract  in  the  absenca  of  fraud  or 
mutual  mistake.  IJut  if  it  is  a  notice 
only  and  docs  not  purport  to  beacon- 
trad  or  does  not  contain  lan^a^e  suf- 
llcicnt  to  constitute  n  contract  it  is  no 
more  than  a  parol  statcnicnt,  and  proof 
must  bo  Kiven  of  actual  assent  by  the 
shipper  to  Its  terras."  Wheeler  Carr., 
SS31. 

2  Wheel.  Carr.,  222. 

•'i  McMillan  r.  U.  Co.,  IG  Mich.  79;  93 
Am.  Dec.  208;  Itoorman  r.  Kx.  Co.,  21 
Wis  l.W;  Detroit  U.  Co.  v.  Uank,2()  Wis. 
127;  .Strohn  v.  K.  Co.,  21  Wis.  tM.  (These 
cases  practically  overrule  the  earlier 
cases  of  The  .Sultana  v.  Chapman,  5  Wis. 
4,'i4;Kalvey  v.  North.  Trans.  Co.,  15  Wis. 
12",».)  !,ake  r.  Ilurd,  .S8  Conn,  fi.tr.;  Law- 
rence f.  K.  (;o.,  .Sfi  Conn.  6.S ;  The  Kmily  v. 
Carney,  6  Kas.  645;  McCoy  v,  Krio  etc. 

16 


Trans.  Co.,  42  Md.  498;  Mafihee  v.  U.  Co,, 
4.)  N.  Y.  514;  May  r.  llabcock,  4  Ohio. 
Mi;  Cincinnati  etc.  H.  I'o.  v.  I'ontius,  19 
Ohio  St.  221;  Lawrence  v.  McCirejior, 
Wright  l'.« ;  .\ilams  Express  Co.  c.  .Sharp- 
less,  77  I'a.  St.  510;  Colton  r.  K.  Co.,  67 
I'a.  St.  211 ;  Kaniham  i-.  K.  Co.,  55  Pa.  St. 
51);  Lojtan  r.  Mobile  Trade  Co.,  46  Ala. 
514;  .\m.  Kx.  Co.  r.  Second  Nat.  Hk.,  69 
I'a.  St.  .S'.t4;  Wcrtheimer  r.  R.  Co..  17 
lilatchf.  411 ;  Whitehead  r.  It.  Co.,  87  N. 
C.  225;  Tex.  etc.  11.  Co.  r.  .Scrivener,  2 
Ti'\.  (App.)  Cas.  .S28;  Blossom  r.  Dodd, 
4.f  N.  Y.  264;  Mueller  c,  U.  Co.,  2  Cin. 
Kep.  280;  LonK  v.  II.  Co.,  60  N.  V.  76; 
Strohn  V.  U.  Co..  21  Wis  554;  94  Am.  Dec. 
564 ;  St.  I/mis  etc.  U.  Co.  t:  Cleary,  77 
Mo.  684;  40  Am.  Uep.  13;  .McFaddep  r.  It. 
Co., 92  Mo.  34.!;  1  Am.  St.  Kep.  721 ;  Mrown 
r.  U.  Co.,18  Mo.  (App.)  568;  Hutchinson 
V.  K.  Co.,  37  Minn.  524;  lloadley  r.  North- 
ern Trans.  Co.,  116  .Mass.  304;  I.".  Am. 
Kep.  106;  Steele  r.  Townsend,  .H7  Ala. 
247;  79  Am.  Dec.  49;  Taylor  r.  K.  (;o.,.S2 
Ark.  393;  29  Am.  Uep.  1;  Mulligan  i.  IC 

225 


O 

CO 


Z.T} 


m 


§149 


MODIFICATION  OF  LIABILITY. 


[part  II. 


§  149.  Express  Receipts.  —  Until  recent  years,  it 
was  not  the  general  practice  of  expressmen  to  deliver 
to  the  shipper,  on  their  receiving  articles  for  carriage, 
anything  more  than  a  mere  receipt  therefor,  specifying 
the  goods  shipped,  the  names  of  the  consignor  and  con- 
signee,  and  the  place  of  delivery.  When  in  individual 
cases  they  undertook  to  add  limitations  and  condi- 
tions to  these  receipts,  it  was  held  that  it  was  neces- 
sary to  prove  the  shipper's  assent  thereto,  and  that  it 
was  competent  for  him  to  show  that  he  did  *'ot  read 
the  paper,  nor  understand  its  purport,  but  that  he  be- 
lieved it  to  be  a  mere  receipt.*  But  the  practice  having 
now  become  general  in  the  case  of  the  great  express 
companies  of  the  country,  for  them  to  deliver  to  the 
shipper  a  receipt  in  the  form  of  a  bill  of  lading,  it  will 
be  found  that  where  this  is  shown,  the  courts  apply  the 
rule  as  to  other  bills  of  lading,  and  hold  that  they 
constitute  contracts  whose  terms  are  binding  on  the 
parties  upon  their  being  received  without  objectiou.- 


Co.,  36  Iowa,  180;  14  Am.  Kcp.  514;  Rob- 
inson 1'.  Merchants'  Dispatch  Trans.  Co., 
45  Iowa,  470;  Klossom  f.  DoM,  43  N.  V. 
264;  Stcinwegr.  U.  Co.,  43  N.  Y.  123;  3 
Am.  Hep.  673;  CJcrniania  Fire  Ins.  Co.  v. 
K.  Co.,  72  N.  Y.  00;  28  Am.  Uep.  113; 
Phifer  v.  R.  Co.,  8!)  N.  C.  311 ;  45  Am.  Ki-p. 
Xi7;  Lonisvillc  etc.  U.  Co.  c.  Urownlcc,  14 
Bush,  590;  Dillardi-.  U.  Co.,  2  t.ca,  2H8; 
Merchants'  Dispatch  Trans.  Co.  i:  Hlocli, 
86Tenn.;-i92;f.  Am.  .'Jt.  Ucp.  847:  fi  S.  W. 
Kep.  881.  Conlr^iii  Illinois,  lioth  as  to 
bills  of  la<ii(ix  ami  express  receipts:  Krio 
Trans  Co.  v.  Dater,!tl  111.  l'.)5  ;  33  Am.  Hep. 
Bl ;  Merchants'  etc.  Co.  r.  Theilbar,  86  111. 
71  ;Adanis  Express  Co.  r.  Kii  15,3  111.  App. 
316;  Merchants'  Trans,  Co.  v.  lA-ysor,  SO 
111.  4:H;  Merchants' Trans.  Co.  r.  .laesting, 
89  111.  152 ;  Field  r.  U.  Co.,  71  111.  4!)8. 

1  Wheeler  Carr.  §  225;  Adams  Kx.  Co. 
V.  Noch,  t  Dnv.  562;  87  Am.  Dec.  51o; 
Sonthern  Ex.  Co.  v.  Ncwby,  36  <ia.  fi.'tS; 
91  Am.  Dec.  783;  Woodrnff  r.  Shcrrard,9 
Hnn.  322 ;  Kember  t*.  Express  Co.,  22  Jm. 
Am.  158;  2  Am.  Uep, 719. 

226 


2  Grace  r.  Adams,  100  Mass.  605;  97 
Am.  Dec.  117;  UnntinKdon  v.  Dinsmore, 
6Thomp.  AC.  I'.to;  4  linn. 66;  Hrehnie  r. 
Adams  Express  Co.,  25  Md.  328;  Kirk- 
laud  r.  Din.smore,  62  N.  Y.  171;  20  Am. 
Uep.  475;  Belger  v.  Dinsmore,  51  N.  Y. 
166;  10  Am.  Kep.  575;  Snider  v.  Adams 
Ex.  Co.,  63  Mo.  376;  CoUender  v.  Dins- 
more, 55  N.  Y.200;Magnin  v.  Dinsmore, 
56  N.  Y.  168 ;  Boorman  v.  Am.  Ex.  Co.,  21 
Wis.  152;  Ghormley  v.  Dinsmore,  53  N. 
Y.  S.  C.  36;  Westcott  v.  F.irgo,  61  N.  V, 
B42;  19  Am.  Uep.  .300;  Gibson  r.  Am.  Ex. 
Co,,  1  nnn,387;  Adams  Kx.  Co. v.  Stella- 
ners,  61  111.  184;  Adams  Ex.  Co.  v. 
Hnynes,  42  III.  89;  Adams  Ex.  Co.  r. 
Schier,  65  111.  140;  Western  Trans.  Co.  f. 
Ilosking,  19111.  (App.)  606;rhcr!nixlns, 
Co.  t!.  West.  Trans.  Co.,  10  IJiss.  29: 
Adams  Ex.  Co.  r.  King,  3  111.  (App.)  316; 
Lake  Shore  etc.  U.  Co.  v.  Davis,  16  111. 
(App.)  425.  But  in  Illinois  by  statnte  a 
carrier  is  forbidden  to  limit  bis  liability 
"by  any  stipalation  or  limitation  ex- 
pressed in  the   receipt  given  for  the 


CH.  XII.] 


MODIFICATION  OF  LIABILITY. 


§150 


§  150.  Baggage  Checks.— The  courts  have  stead- 
ily refused  to  baggage  receipts  or  checks,  the  standing 
which  bills  of  lading  have  been  able  to  obtain.*  In  a 
well  considered  case  in  New  York,-  a  baggageman 
came  into  the  car  where  plaintiff  was,  to  whom  he  gave 
up  his  railroad  check,  and  received  a  printed  receipt 
without  knowing  anything  of  its  contents,  which  he 
folded  and  put  in  his  pocket  without  reading.  On  the 
receipt  was  printed  "Domestic  bill  of  lading,"  and  it 
purported  to  be  a>  contract  relieving  the  carrier  from 
liability  beyond  $100  in  certain  specitied  cases,  among 
others  a  loss  or  detention  through  his  negligence,  un- 
less the  baggage  was  specially  insured.  It  was  held 
that  the  plaintiff  was  not  bound  by  the  limitation. 
<'N()  court,"  said  ('urtis,  (\  J.,  "holds  that  a  traveler 
receiving  a  receipt  of  this  nature,  and  under  like  cir- 
cumstances where  it  is  impossible  to  read  it,  and  no 
intimation  is  given  him  of  its  embracing  a  contract, 
is  bound  by  such  contract.  Besides,  there  are  intrinsic 
ditticulties  in  extending  any  such  immunity  from  lia- 
bility to  parties  engaged  in  the  porterage  of  travelers' 
baggage  at  night  in  large  communities.  The  printing 
near  the  commencement  of  the  receipt  the  words  'Do- 
mestic bill  of  lading,'  does  not  obviate  the  distinction 
drawn  in  the  cases  above  referred  to,  though  possibly 
so  intended;"  and  Andrews,  J.,  said:  "The  plaintiff,  on 
receiving  the  paper  had,  from  the  nature  and  circum- 


o 

< 
"n 

-0 

CO 

r- 


property."  Nevertheless  a  receipt 
signed  by  the  shipper  j?  his  aRent  (Illi- 
nois etc.  u.Co.  r.  Jontc,  l.S  111.  (App.) 
428)  orssientud  to  and  accepted  as  such 
by  the  shipper  (Merchants'  Trans.  Co. 
V.  Jacstiiig,  87  111.  152;  Merchants* 
Trans.  Co.  v.  Leysor,  8!)  111.  8<.t)  becomes 
•  binding  contract.  In  Dakota  by  statotc 
the  shipper's  assent  can  be  niunifcstcd 
only  by  his  signatare.  llartwellr.  North. 
Pac.  Rx.  Co.,  41  N.  W.  Kep.  732.    And  a 


similar  atatntc  Is  In  force  in  Michigan, 
t'eige  V.  U.  Co.,  62  Mich,  1. 

1  niossom  V.  Uodd,  43  N.  Y. ;  3  Am. 
Rep.  701;  Woodruff  r.  Shcrrard,  9  Hun, 
322;  ITentice  v.  Decker,  4!t  Barb.  21; 
Limburger  v.  Westcott,  4'.t  Barb.  283; 
Sutherland  r.  Westcott,  2  Sweeney260; 
Isaacson  t'.  K.  Co.,  94  N.  Y.  278;  46  Am. 
I{ep.r<42. 

^  Madan  r.  .'^herard,  10  J.  &  8.  803;  73 
N.  Y.  3r.);  29  Am.  Urp.  153. 

237 


T 


T 


§152 


MODIFICATION  OF  LIABILITY. 


[part  n. 


stances  of  the  transaction,  a  right  to  regard  it  as  de- 
signed simply  as  a  voucher  to  enable  him  to  follow 
and  identify  his  property;  and  if  he  had  no  notice  that 
it  was  intended  to  subserve  any  other  purpose,  or  that 
it  embodied  the  terms  of  a  special  contract,  his  omis- 
sion to  read  it  was  not  per  sc  negligence.  When  a  con- 
tract is  required  to  be  in  writing,  and  a  party  receives 
a  paper  as  a  contract,  or  when  he  knows  or  has  reason 
to  suppose  that  a  paper  delivered  to  him  contains  the 
terms  of  a  special  contract,  he  is  bound  to  acquaint 
himself  with  its  contents,  and  if  he  accepts  and  retains 
it,  he  will  be  bound  by  it,  although  he  did  not  read  it. 
But  this  rule  cannot,  for  the  reasons  stated,  be  applied 
to  this  case,  and  the  court  properly  refused  to  charge 
as  matter  of  law,  that  the  delivery  of  the  receipt 
created  a  contract  for  the  carriage  of  the  trunk  under 
its  terms."  So,  a  printed  limitation  on  the  back  of  a 
metal  check  for  baggage  that  the  carrier  will  not  b6 
bound  over  one  hundred  dollars  iu  case  of  loss,  is  not 
binding  on  the  passenger  unless  his  express  assent  to 
the  limitation  is  shown — the  mere  receipt  of  the  check 
is  no  evidence  of  such  assent.* 

§  151.    Requisites  to  Validity  of  Such  Notices. 

— But  there  are  several  requisites  to  the  legal  validity  of 
such  notices,  whether  as  mere  notices,  which  are  valid 
without  assent,-  or  as  proposals  which  become  con- 
tracts by  being  agreed  to.  What  these  requisites  are 
will  be  shown  in  the  next  six  sections: 

§  152.  There  Must  be  no  Mistalce. — Any  mis- 
take, whose  effect  would  be  to  prevent  the  formation 
of  the  contract  may  be  shown  by  the  shipper.^     The 


1  Indianapolis  etc.  R.  Co.  v.  Cox,  29 
Ind.  360. 

2  Ante  i  141. 

SBoEkowitz  f.  Adams  Ex.  Co.,  9  Cent. 
L.  J.  389;  Mebrbach  v.  Liverpool  etc.,  Co. 

228 


12  Fed.  Uep.  77;  Baird  v.  U.  Co.,  41  Fed. 
Rep.  592 ;  Adams  Kx.  Co.  v.  Kock,  2  I)av. 
5fi2;Chouteaux  r.  Leech,  18  Ta.  St.  224; 
Warden  v.  Ureer,  6  Watta,  424. 


en.  XII.] 


MODIFICATION  OF  LIABILITY. 


§153 


bailor  may  show,  notwithstanding  the  possession  by 
him  of  the  carrier's  receipt,  that  he  never,  in  fact,  ac- 
cepted the  paper  as  a  contract  binding  between  him- 
self and  the  carrier;^  he  may  show,  in  short,  what  the 
real  contract  was.^ 

§  153.  Nor  Duress.  —  It  is  said  in  a  Kentucky 
case,  that  where  there  exists  an  extraordinary  neces- 
sity for  the  immediate  transportation  of  goods,  and 
the  carrier  refuses  to  take  them  except  under  a  special 
contract,  the  exaction  of  such  a  contract  ought  not  to 
be  sanctioned,  being  obtained  under  duress.^  In  Texas 
it  has  been  recently  held  that  a  contract  signed  by  a 
shipper,  after  he  had  placed  his  cattle  on  the  cars  of  a 
railroad,  limiting  the  liability  of  the  company,  and  in- 
duced by  the  refusal  of  the  company  to  carry  the  cat- 
tle unless  it  was  signed,  is  void.^  And  it  is  ruled  in 
Arkansas  and  Tennessee,  that  where  a  carrier  affords 
shippers  no  opportunity  to  send  their  freight  except 
under  a  limited  liability,  and  refuses  to  receive  it  ex- 
cept under  such  a  contract,  the  latter  is  not  binding 
on  them.'* 


1  Mobile  etc.  R.  Co.  r.  Jnrey,  111  U.  S. 
684;  Boorman  r.  Am.  Kx.Co.,21  Wis.  152; 
Strohn  V.  U.  Co.,  21  Wis.  554;  King  v, 
Woodbridge,  34  Vt.  665. 

2  Mobile  etc.  R.  Co.  v.  Jurey,  HI  U.  S. 
584;  Missonrl  etc.  U.  Co.  v.  Carter,  29  S. 
W.  Rep.  665  (Tex.). 

3  Adams  Ex.  Co.  v.  Nock,  2  Dnv.  562. 

4  Missouri  etc.  R.  Co.  v.  Carter,  29  S. 
W.  Rep.  565. 

6  Little  Rock  etc.  R.  Co.  v.  Cravens,  20 
S.  W.  Rep.  863  (Ark.);  Louisville  etc.  R. 
Co.  V.  Gilbert,  12  S.  W.  Rep.  1018  (Tenn.) ; 
and  see  McFadden  v.  R.  Co.,  92  Mo.  343; 
4  S.  W.  Rep.  689.  In  Newberger  v.  Kx- 
pres»  Co.,  6  Phlla.  174,  it  is  said:  "There 
can  be  no  donbt  tbat  if  a  carrier  were  to 
attempt  to  provide  either  that  all  goods 
sbonldbevalnedata  Uxed  snm  indepen- 


dently of  their  real  valne,  or  demand  an 
increased  compensation  in  the  form  of 
insnrauce  dispropottioned  to  the  in- 
crease of  responsibility  and  risk,  the  at- 
tempt would  be  one  which  the  law  would 
discunntenance  and  put  down.  The  rem- 
edy of  the  owner  would  then  be  found 
either  in  summoning  the  carrier  to  accept 
the  goods  at  the  real  valao  and  subject  to 
a  reasonable  charge,  and  mulcting  him  in 
damages  it  he  refused,  or  in  delivering 
them  under  protest  and  calling  upon 
the  courts  for  redress  in  case  of  loss." 
Where  the  term*  of  the  carrier's  special 
acceptance  are  reasonable,  the  fact  that 
the  shipper  agreed  to  it  "under  protest" 
is,  it  seems,  not  material.  Goggin  v.  R. 
Co.,  12  Eas.  416. 

229 


»; 


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■ 


§154 


MOrHnCATION  OF  LIABILITY.  [PART  II. 


§  154.  Nor  Fraud.  —  Contracts  of  this  char- 
acter, by  reason  of  the  unequal  situation  of  the  parties, 
and  of  tlie  duties  of  the  carrier  and  his  liability  under 
the  common  law,  and  of  his  restricted  rights  by  reason 
of  his  public  duty  to  the  commerce  of  the  country,  stand 
upon  a  different  footing  from  contracts  between  indi- 
viduals.* They  belong  to  that  class  of  contracts  which, 
on  account  of  the  relations  of  the  parties,  will  not  be 
permitted  to  stand,  unless  they  are  shown  to  have  been 
entered  into  understandingly,  freely,  fairly  and  without 
compulsion  or  undue  influence.-  If  any  attempt  at  impo- 
sition or  deception  appears,  or  any  device  be  resorted 
to,  to  mislead  the  shipper  or  to  keep  from  his  notice 
any  of  the  written  or  printed  indorsements  upon  the  re- 
ceipt, which  are  intended  to  aflcct  liis  liability,  they 
will  not  avail  the  carrier  if  they  liave  been  overlooked.'' 

It  would  be  a  fraud  on  the  shipper  for  the  carrier  to 
insert  in  the  receipt  any  provision  which  the  customer 
had  no  reason  to  believe  it  would  contain,*  or  to  print 
the  limiting  clauses  in  type  smaller  than  the  rest  of 
the  document,  and  likely  to  escape  his  observation,"'  or 
to  use  abbreviations  of  characters  which  the  shipper 
would  not  be  likely  to  understand,"  or  ambiguous 
or  conflicting  language.^     So,  it  has  been  held  a  fraud 


1  Railroad  Co.r.  Mannfj?.  Co.,  16  Wall. 
82<t;  Railroad  Co.  r.  l.ockwood,  17  Wall. 
.S78-.SS4;  Kansas  etc.  1{.  Co.  v.  Reynolds, 
17  Kan.  2,52;  Merchant  Trans.  Co.  v  Ley- 
8or,  89  111.  45;  Krie  Trans.  Co.r.  Dater, 
ni  111.  lys;  P,3  Am.  Rep.  .M  ;  Mobile  etc.  R. 
Co.  f.  .Jurcy,lll  U.  .S.591;  Adams  Kx.  Co. 
f.  Nock,  2  Uuv.  BG2. 

2  Laws.  Cont.  §  269  et  seg. 
a  Hatch.  Carr  §  245. 

4  Strohn  v.  R.  Co.,  21  Wis.  564. 

sVerner  v.  Swoitzer,  32  I'a.  .St.  208; 
Grace  t».  Adams,  100  Mass.  5(i5;  Iluadley 
f.  North. Trans.  Co.,  11!>  Ma.is.  on4;  .Snider 
V.  Adams  Ex.  Co.,  63  Mo.  37r>;  Htitler  v. 
Ueane,  2  Camp.  415 ;  Blossom  r.  Uoild,  43 
N.  Y.  264. 

230 


<)  In  a  bill  of  lading  the  following,  very 
illegibly  written,  appeared:  "L.  &  O.  ex. 
20  R.  R.  val."  This  was  interpreted  by 
the  carrier  to  mean:  "Leaks  and  onts 
excepted  $20  railroad  valuation."  This 
was  held  not  binding;  tn  the  shipper. 
Rosenfeld  f.  R.  Co.,  103  Ind.  121;  63  Am. 
Rep.  600;  2  N.  K.  Rep.  HH. 

7  Gonger  v.  Jolly,  Hoit  317;  Cobden  r. 
Ronlton,  2  Camp.  108;  Mnnn  v.  Maker,  2 
Stark.  255.  In  Itarney  v.  Prentiss, 4  II.  A 
.1.  317;  7  Am.  Dec.  670,  the  carrier  had 
published  in  several  newspapers  tl\c 
time  when  his  stages  would  start  and  ar- 
rive, which  publication  contained  the 
following  clause:  "Fare  and  allowance 
of  baggage  as  usual.    All  baggage  to  be 


;  (i: 


CH.  XII.] 


MODIFICATION  OP  LIABILITY. 


§154 


on  him  where,  at  the  time  of  the  delivery  of  the  goods 
the  carrier's  servant  asked  the  shipper  to  sign  a  paper, 
who  expressed  his  unwillingness  to  do  so,  because  he 
could  not  see  to  read  it,  whereupon  the  clerk  said  it 
was  of  no  consequence,  that  the  signature  was  a  mere 
matter  of  form,  and  the  shipper,  relying  upon  these 
assurances,  signed  it,  but  it  turned  out  to  be  a  con 
tract  limiting  the  defendant's  liability.*  So,  where  a 
shipper  of  cattle,  after  they  were  on  the  cars,  was  pre- 
sented a  paper  to  sign,  just  as  the  train  was  starting, 
and  without  opportunity  to  read  it.^ 

The  courts  make  a  distinction  between  conditions  in 
the  contract — whether  it  be  a  bill  of  lading  or  other 
paper — and  conditions  not  appearing  on  its  face,  but 
attached  to  it  or  printed  or  written  on  its  back.  It  is 
said  in  one  case,  that  there  is  no  difference  between 
public  notices  by  advertisement  or  placard,  and  notices 
printed  on  the  back  of  a  receipt,^  and  so  far  as  assent 
to  their  terms  is  sought  to  be  inferred  from  their  ac- 
ceptance, the  latter  are  equally  impotent.*  In  Rail- 
rodd  Corn panif  v.  Manufacturing  Companif/'  decided  by  the 


at  the  risk  of  the  owner  thereof.  All 
baggage  over  twenty  pounds  will  here- 
after positively  be  charged  and  be  at  the 
risk  of  the  owners  thereof."  The  plaint- 
iff sned  tor  the  value  of  a  parcel  which 
the  carrier  had  failed  to  deliver;  it  was 
admitted  that  before  placing  It  in  the 
carrier's  hands  he  had  known  of  the 
advertisement.  The  Court  of  Appeals, 
without  deciding  whether  the  carrier 
could  or  could  not  evade  bis  rcs|)on8i- 
bllity  by  publication  of  notice,  ordered 
Judgment  for  the  plaintiff,  on  the  ground 
that  if  carriers  "can  by  their  publica- 
tions exempt  themselves  from  their  lia- 
bility, then  the  publications  in  the  lan- 
guage of  the  exceptions  should  bo  plain, 
e\|ilicit  and  free  from  all  ambiguity. 
Hut,  as  in  the  case  before  the  court,  the 
defendant,  in  the  advertisement  pub- 
lished by  him,  has  used  the  most  doubt- 
ful and  ambitnioas  language,  he  there- 


fore stands  in  the  same  predicament  as 
if  no  publication  had  been  made." 

1  Simons  r.  U.  Co.,  2  0.  B.  (N.  S.)  620. 
See  Illossom  v.  Dodd,  43  N.Y.  2G4  ;  3  Am. 
I4ep.  701;  Madan  f.  Sherranl,  73  N.Y. 
329;  29  Am.  Uop.  153,  where  a  receipt 
containing  conditions  was  deliver«ii  to 
the  plaintitf  in  a  dimly  lighted  car,  uud 
Terry  v.  Thompson,  98  Mass.  249,  where 
over  part  of  the  limiting  clause  in  the 
receipt  a  revenue  stamp  was  so  pasted 
as  to  render  it  unintelligible. 

2  Missouri  etc.  R.  Co.  v.  Carter,  29  S. 
\V.  Uep.  566;  Black  v.  U.  Co.,  Ill  111.  351 ; 
53  Am.  Uep.  628. 

3  Western  Trans.  Co.  v.  Newhall,  2* 
111.  466. 

4  Newell  r.  Smith,  49  Vt.  28.5;  Ayers  v. 
U.  Co.,  14  Blatchf.  9;  The  Isabella,  8 
Ben.  i;i9;  Mich.  Cent.  U.  Co.  v.  Halo,  6 
Mich.  243. 

«  16  Wall.  318. 

231 


< 

•""•J 

Jo 


■  li.- 


r  >  \ 


§155 


MODIFICATION  OF  LIABILITY, 


[part  II. 


Supreme  Court  of  the  United  States,  a  receipt  given  by 
a  railroad  company  referred  to  certain  rules  and  regu- 
lations of  the  company,  "a  part  of  which  notice  is  given 
on  the  back  hereof."  On  the  back  were  printed  certain 
conditions  restricting  the  common  law  liability  of  the 
company.  The  receipt  was  taken  by  the  consignor  with- 
out either  assent  or  dissent.  It  was  held  that  the  no- 
tice was  not  operative  to  relieve  the  company. 

§  155.  Nor  Waiver.  —  The  notice  or  the  limit- 
ing condition  may  be  waived  by  the  carrier  either  by 
words  or  acts,  and  in  such  case  he  loses  its  benefit.* 
Thus,  though  an  express  receipt  provides  that  "where 
the  value  of  the  property  is  not  specified  in  the  receipt, 
the  company  will  not  be  liable  for  a  sura  exceeding 
fifty  dollars,"  the  carrier  will,  notwithstanding,  be 
liable  for  the  full  value  of  the  property  in  case  of  loss, 
if  it  appear  that  the  receiving  agent  of  the  company 
was  correctly  informed  of  their  value  at  the  time  of  the 
receipt  of  the  goods.^  The  condition  as  to  value  may 
be  waived  by  the  carrier's  knowledge  that  the  article 
he  accepts  is  beyond  the  value.^  Where  a  package  de- 
livered to  an  express  company  for  transportation  was 
marked  C.  O.  D.  |292,  as  appeared  by  the  receipt  given 
by  the  company,  the  receipt  also  providing  that  articles 


so  delivered  should  be  valued  under 


unless  other- 


wise stated  therein,  the  company  was  charged  with  no- 
tice of  the  value  of  the  package,  and  with  liability  for 
the  full  amount.^  So,  where  the  owner  of  a  package 
told  the  carrier  that  it  contained  papers  as  valuable 


1  Helsby  V.  Hears,  6  B.  A  C.  604 ;  Wink- 
fleld  V.  rackiDgton,  2  C.  &  V.  599;  Pick- 
lord  V.  R.  Co.,  12  M.  A  W.  7G6. 

2  Southern  Kx.  Co.  v.  Newby,  36  Ga. 
635;  Kember  v.  SoDtbern  Kx.  Co.,  22  La. 
Ann.  1S8. 

282 


s  Beck  V.  Evans,  3  Camp.  267;  Bos- 
kowitz  r.  Adams  Kx.  Co., 5  Cent.  L.  J.  RS; 
Orndorff  t-.  Adams  Kx.  Co.,  3  Busb.  194; 
Southern  Kx.  Co.  r.  Crook,  44  Ala.  468. 

*  Van  Winkle  v.  Adams  Ex.  Co.,  8 
Robt.  69. 


CH.  XII.] 


MODIFICATION  OF  LIABILITY. 


§156 


as  money,  when  it  in  fact  contained  money,  it  was  held 
that  this  was  sufficient  to  put  the  carrier  on  his  guard 
as  to  the  care  which  should  be  taken  of  the  package.^ 

§  156.     Nor    Antecedent    Parol    Contract.  — As 

the  contract  of  carriage  is  good  by  word  of  mouth,  or 
without  any  writing,-  any  notice  to  the  customer,  after 
it  is  made,  can  have  no  effect.^  Upon  the  receipt  of 
goods  for  transportation  by  the  carrier,  his  common  laAV 
responsibility  commences  and  attaches,  and  this  liabil- 
ity can  not  be  altered  bj'  the  subsequent  delivery  to  the 
customer  of  a  bill  of  lading  or  other  writing  contain- 
ing conditions  limiting  his  liability.^  And,  of  course, 
a  carrier  can  not,  after  a  loss  has  occurred,  restrict  his 
liability  by  signing  or  delivering  a  bill  of  lading.^  If, 
however,  the  oral  negotiations  are  simply  preliminary 
to  the  written  contract,  or  tlie  verbal  agreement,  and 
the  subsequent  delivery  of  the  bill  of  lading  is  one 
transaction,  the  latter  is  the  only  evidence  of  the  con- 
tract.*^    And  whore,  at  the  time  of  the  delivery  of  the 


1  Dwightr.  Brewster,  1  Tick.  50. 

2  Mobile  etc.  It.  Co.  v.  Jurey,  111  U.  S. 
684;  American  Trans,  Co.  v.  Moore,  5 
Mich.  368;  Dnnn  r.  liranner,  13  La.  Ann. 
452;  Uoberts  v.  Riley,  16  La.  Ann.  103; 
.'^tielton  r.  Merchants'  Dispatch  Co.,  86 
N.  Y.(.S.  C.)  527,8.  c.,69N.  Y.  258. 

3  Hamilton  i-.  U.  Co.,9f)N.C.398;  Strohn 
V.  R.Co.,  21  Wis.  554;  Merchants'  Trans. 
Co.  V.  Cornforth,  A  Colo.  280;  26  Am.  Uep. 
757;  Hastings  v.  U.  Co.,  6  N.  Y.  (Supp.) 
836;  ItlosRom  v.  GrilUn,  13  N.  Y.  669;  De- 
troit etc.  U.  Co.  V.  Adams,  16  Mich.  488. 

4  Sheltoni'.  Despatch  Co.,  30  N.  Y.  (S. 
O.)  627;  Coffin  f.  R.  Co.,  64  llarb.  379; 
Bostwicki'.  K.  Co.,  45  N.  Y.  712;  Strohn 
V.  R.  Co.,  21  Wis.  564;  Simons  t'.  R.  Co., 
2C.B.  (N.  S.)  620;  Cleveland  etc.  R.  Co. 
ti.  Perkins,  17  Mich.  236;  Gott  r.  Dins- 
more,  111  Mass.  45;  Am.  Express  Co.  «. 
Spellman,  90  111.  455 ;  Michigan  etc.  R.  Co. 
V.  Boyd,  91  III.  268;  Shiff  t'.  H.  Co.,  16 
Ilnn.  278;  81  N.  Y.  278;  Swift  v.  Paciflc 
Mails.  S.  Co.,106N.  Y.206;12N.B.  Rep. 


583 ;  Mo.  I'ac.  R.  Co.  v.  Beeson,  30  Kas. 
298;  2  Pac.  Rep.  496;  Park  v.  Preston, 
108  N.Y.  434;  15  N.  K.  Rep.  705;  Guil- 
lanme  v.  General  Trans.  Co.,  100  N.  Y_ 
491;  3  N.  E.  Rep.  489;  German  v.  II. 
Co.,  38  la.  127 ;  Shiff  v.  R.  Co.,  52  How.  Pr. 
91;  Gage  r.  Terrell,  91  Mass.  299;  Mehr- 
back  f.  Liverpool  etc.  Co.,  12  Fed.  Rep. 
77;  Lamb  t'.  R.  Co.,  4  Daly,  483;  Perry  c. 
Thompson,  98  Jlass,  249;  Rawson  v.  R. 
Co.,  48  N.  Y.  212;  Hamilton  r.  R.  Co.,  96 
N.  C.  398;  3  S.  E.  Rep.  104.  Nor  where 
the  bill  ot  lading  was  not  delivered  at 
the  time  the  goods  were  received,  but 
was  sent  by  mail  to  the  place  of  their 
destination:  Louisville  etc.  R.  Co.  v. 
Meyer,  78  Ala.  597. 

5  Wilde  r.  Merchants'  Trans.  Co.,  47Ia. 
247;  The  Edwin,  1  Sprague,  477;  Cleve- 
land etc.  R.  Co.  V.  Perkius,  17  Mich.  296; 
Gott  t'.  Dinsniore,  111  Mass.  45;  Hast- 
ings i\  R.  Co.,  6  N.  Y.  (Supp.)  836. 

6  Hill  r.  R.  Co.,  73  N.  Y.  351;  29  Am. 
Rep.  163;  sea  post,  §  160. 

233 


:!!§ 


:35 


ii 


Wl^ 


§157 


MODIFICATION  OF  LIABILITY. 


[part  II. 


j>oo{ls  a  simple  receipt,  called  a  shipping  receipt,  is 
jfiven  to  the  coiisignor,  which  states  that  a  bill  of  lad- 
ing will  be  issued  at  a  place  designated  therein,  and 
that  the  goods  are  to  be  transported  subject  to  the  con- 
ditions expressed  in  the  bill  of  lading,  the  latter  in  the 
absence  of  fraud,  binds  the  consignor.* 

§  157.  Must  have  a  Consideration.  —  The  rule 
that  a  contract  requires  a  consideration,  is  elementary.- 
So  is  the  rule  that  a  promise  to  do,  or  tlie  doing  of  what 
a  person  is  under  a  previous  legal  obligation  to  per- 
form, forms  no  matter  for  a  consideration,  and  cannot 
support  a  promise.'^  Hence,  as  a  common  carrier  is 
bound  to  carry  under  his  insurance  liability  whenever 
requested,  the  mere  agreement  to  carry  does  not  fur- 
nish a  consideration  for  a  contract  in  derogation  of 
his  responsibility  at  common  law;  nor  does  his  agree- 
ment to  carry  for  the  price  which  he  might  charge  in 
case  his  liability  was  not  limited,  or  which  it  was  his 
custom  to  charge  in  such  case.*     Therefore,  unless  the 


I  Wildo  r.  SIcrchiiuts'  Trans.  Co.,  47 
1.1.  272. 
■-'  I.iiwson  on  Contracts,  §  91. 

3  /(/.,  §  101. 

4  ni.-:sen  V.  1?.  Co.,  25  N.  Y.  442;  82  Am. 
Dec.  .Sfi9;  Xclsouu.  U.  Co.,4S  N.  Y.  4!«; 
iicriiian  i>.  U.  Co.,  HH  Iowa,  127;  Kariihani 
V.  K.  Co.,  .io  I'a.  St.  n.S;  McMillan  r.  K. 
Co.,  16  Mich.  7!);  OH  Am.  iKc.  SOS;  Taylor 
r.  U.  Co.,  89  Ark.  US.  A  ctirious 
view  of  the  case  is  taken  in  Kirby 
r.  Adams  Ex.  Co.,  2  Mo.  (App.) 
'iiC,^,  where  it  is  said  that  this  is  a  matter 
with  which  courts  can  no  lonptor  deal. 
Tint  why  they  are  thus  powerless  is  not 
explained.  In  a  case  in  Minnesota  it  is 
said:  "The  delivery  and  acceptance  of 
the  animals  for  carriiige  was  a  suHlcient 
mutual  consideration  to  sustain  the 
apreement  as  to  the  ('xtent  of  the  de- 
fendant's liability."  Hutchinson  i:  H. 
Co.,  37  Minn.  524;  .S5  X.  W.  Hep.  4.S3. 
This  is  correct,  if  in  that  State  a 
common  carrier  is  under  no  obli- 
gation to  receive  live  animals.  Ilut 
this  case  is  overruled  without  beinjj  no- 

234 


ticed  in  the  later  case  of  Wehniann  r. 
U.  Co., .59  X.  \V.  Uep.  546  (Minn  1,  where 
it  is  said:  "The  validity  of  the  clause  is 
to  be  deti'rmined  by  the  principles  of  the 
common  law,  then  the  <iuestion  arises, 
was  there  a  consideration  to  support  it? 
Such  a  clause,  to  be  of  force,  must  staml 
as  a  contract  between  the  shipper  and 
the  carrier,  and,  as  in  the  case  of  all  con- 
tracts, there  must  be  a  consideration  for 
it.  One  exercising  the  employment  of 
a  oomnion  carrier  of  goods  is  bound  to 
receive  and  carry  such  (tvithiu  the  class 
of  goods  that  he  carries)  as  are  tendered 
to  him  for  the  purposes,  and,  in  the  ab- 
sence of  special  contract,  to  carry  them 
with  the  full  common-law  liability  of  a 
common  carrier.  His  receipt  of  and  un- 
dertaking to  carry  them,  being  a  duty 
imposed  on  him  by  law,  is  not  a  consid- 
enition  to  support  such  special  contract. 
There  must  be  some  other.  That  is  gen- 
erally furnished  by  some  concession  in 
rates.  And,  where  the  agreement  is  set 
forth  in  the  contract  for  carriage,  it 
would  probably  be  presumed  that,  in  a 


CH.  XII.] 


MODIFICATION  OF  LIABILITY. 


§157 


shipper  is  shown  to  have  received  some  advantage 
which  he  could  not  have  had  were  the  insurance  lia- 
bility of  the  carrier  insisted  upon,^  or  the  carrier  has 
done  something  he  was  not  already  hound  to  do,-  the 
restrictive  contract  is  not  binding  on  the  shipper.^ 
And  the  same  is  true  of  a  notice  limiting  the  liability 
of  the  carrier  to  a  fixed  sum.*  It  has  been  recently 
held  that  a  railroad  company  that  has  made  no  reduc- 
tion in  its  freight  rates  in  consideration  of  a  stipulation 
against  liability  for  loss  from  tire,  that  has  furnishe«l 
its  agent  with  no  other  form  of  bills  of  lading  except 
those  which  contain  a  fire  clause,  and  has  given  him 
no  authority  to  submit  to  the  shipper  the  alternative 
of  paying  a  higher  rate  for  a  shipment  with  the  ordi- 
nary common  law  responsibility,  is  liable  for  goods 
destroyetl  by  lire,  as  an  insurer,  under  a  bill  of  lading 
containing  the  lire  clause,  and  this,  although  the  com- 
pany's otticers  testify  that  the  company  had  two  freight 
rates — one   under  the   restricted   liability,   the  other 


case  where  parties  conltl  niiikc  any. 
there  was  some  such  concession  as  a 
consideration  for  reliovinf?  the  carrier  of 
part  of  his  couiuionlaw  liability.  Jtut  iu 
such  a  case  as  this,  any  abatement  of 
rates  is  forl)i(lileu  l)y  act  of  contrress.and 
therefore  none  can  be  presumed.  The 
tariff  of  joint  rates  in  the  case  makes  no 
mention  of  any  limitation  of  liability. 
They  are  to  be  taken,  therefore,  as  rates 
established  for  carriage  with  full  com- 
mon carrier's  liability ;  and  nniler  the  act 
of  conpress  no  abatement  could  be  made 
to  support  a  contract  for  a  limited  lia- 
bility. The  clause  is  void  for  want  of  a 
consideration  to  support  it."  A  railroad 
carrying  the  United  .'*tates  mail  was  re- 
quired by  statute  to  carry  with  the  nuiil 
without  charge  the  messenger  in  charge 
of  it.  It  furnished  him  with  a  pass  con- 
taining a  limitation  on  its  liability.  The 
messenger  being  injured,  it  was  held 
that  the  limitation  was  iiuUum  pactum.  A 
promise,  said  the  Court,  to  do  that  which 


the  promisor  is  already  under  a  legal 
obligation  to  perform  is  insulUcient  as  a 
consideration  to  sujiport  a  contract.  Sey- 
bolt  v.  K.  Co., 95  N.  Y.  562;  47  Am.  Kep.  75. 

1  As  where  the  carrier  reduces  his 
rates  where  his  insurance  liability  is 
waived.  Hiseell  v.  K.  Co.,  25  N.  Y.  442; 
Nelson  f.  K.  ("o.,  48  X.Y.  498;  Farnham  v, 
U.  Co.,ri5  I'a.  .St.  63;  Dillard  w.  U.  Go.,2 
Lea.  288;  Jennings  v.  U.  Co.,  5  N.  Y. 
(.Supp.;  140;  York  Co.  v.  11.  Co.,  3  Wall. 
107;  McMillan  v,  U.  Co.,  16  Mich.  T'.t.  Or 
carries  the  customer  free,  Bissell  v,  U. 
Co.,  ante. 

'■i  As  where  a  railroad  received  the 
passenger  on  its  freight  trains  which  it 
was  not  bound  to  do.  Arnold  v.  li.  Co., 
S3  Hi.  273;  25  Am.  Kep.  383. 

••'  Adams  Kx.  Co.  r.  Harris,  21  N.  E, 
Ilep.  .340;  Wiggins  r.  Krie  K.  Co.,  5  Ilun. 
;^45;  Missouri  etc.  U.  Co.  r.  Charter,  29  S. 
W.  Kep.  565  (Te.x.j;  Kas.  Tac.  li,Co.v. 
Ueynolds,  17  Kas.  251. 

4  McFadden  i-.  U.  Co.,  ante. 

235 


§158 


MODIFICATION  OF  LIABILITY. 


[PAKT  II. 


without — and  that  if  the  shipper  had  so  requested,  he 
would  have  been  allowed  to  ship  his  goods  under  a 
bill  of  lading  without  the  fire  clause  in  it.' 

§  158.     Time  and  Maimer  of  3Iakingr  Claim.— The 

carrier  may,  by  conti-act,  limit  the  time  within  which 
claim  shall  be  made  against  him  by  the  owner  of  the 
goods,  in  case  they  are  damaged  or  lost.  Such  a  con- 
dition is  considered  proper  in  order  to  enable  the  car- 
rier, while  the  occurrence  is  recent,  to  institute  proper 
inquiries  and  ascertain  the  facts.-  In  the  case  of  the 
great  railroad  and  express  companies  of  the  country, 
each  of  whom  handles  scores  of  packages,  large  and 
small,  every  day,  it  would  be  next  to  impossible  for 
them  to  explain  a  loss  or  Injury  of  which  they  had  no 
notice  until  a  year  or  more  after  it  occurivd.''  Nor  is 
such  a  couditi(m  a  limitation  of  the  right  to  sue  within 
the  time  fixed  b}"^  law,  for  having  made  his  claim,  the 
owner  may  delay  his  suit  to  any  time  within  the  period 
of  the  statute  of  limitations.^  So,  by  contract,  the  lia- 
bility of  the  carrier  may  be  limited  to  cases  in  which 
the  claim  has  been  presented  in  a  certain  prescribed 
manner.'^ 

The  requisites  to  the  binding  force  of  such  contracts 
are: 

1.    The  time  and  manner  of  presenting  the 
must  be  reasonable,  which  question  is  one  of  la       or 
the  court,"    Conditions  have  betMi  sustained  as  rea.xiii- 


1  Looisrille  etc.  R.  Co.  v.  Gilbert,  12  S. 
W.  Rop.  1018. 

2  Express  Co.  v.  Caldwcll,21  Wall.  264. 
It  does  not  "limit  or  restrict  the  com- 
mon law  liability  of  the  carrier •■  within 
those  words  in  a  stutate.  Guli;  etc.  R. 
Co.  r.  Tniwick,  68  Tex.  314;  2  Am.  St. 
Rep.  4!M;  4S.  W.  Kep.  567. 

3  Weir  V.  Kxpress  Co.,  6  Phila.  355; 
Soutb.  Ex.  Co.  t'.Uonnicatt,  54  Mies.  566; 

236 


28  Am.  Rep.  385 ;  United  States  Ex.  Co.  v. 
Harris,  51  Ind.  107. 

*  Ilntch  Carr.  §  259;  Express  Co.  v. 
Caldwell,  21  Wall.  264. 

8  Wheeler  Carr.  §  124. 

6  Wheeler  Carr.  125 ;  Ilermaun  v.  West. 
Union  Tel.  Co.,  67  Wis.  ."562;  I'lace  v. 
Union  Ex.  Co.,  2  Hilt.  19;  Itrowning  t<. 
R.  Co.,  2  Daly.  117.  Whether  the  owner 
had  a  good  excuse  for  not  giving  the  no  - 


CII.  XII.] 


MODIFICATION  OF  LIABILITY. 


§158 


able,  that  the  carrier  shall  not  be  held  liable  for  loss 
of  or  damage  to  the  property  unless  notice  shall  be 
given  within  thirty,'  or  forty  days,''  or  even  a  shorter 
time,^  after  the  loss  or  damage  occurred,  or  the  prop- 
erty should  have  been  delivered;  that  the  notice  shall 
be  given  in  writing  to  some  i)articular  otricer  of  the 
caiTier,*  or  that  the  statement  of  claim  shall  be  veri- 
fied by  aflidavit;"  or  made  at  the  time  the  goods  are  re- 
ceived by  the  consignee,  and  before  they  are  mingled 
with  other  goods."  Where  the  condition  is  that  the 
claim  is  to  be  made  in  a  certain  number  of  days  after 
shipment  of  the  property  without  reference  to  the 
time  of  the  loss,  it  is  unreasonable^       A  condition  re- 


tice  is  a  qnostion  (or  the  ]nry.  Glenu  v. 
South.  Kx.  Co.,  86Tenn.  5'J4 ;  8S.  W.  Kep. 
152;  Uuwson  r.  11.  Co.,  70  Mo.ftU. 

1  .Southern  Kx.  Co.  t-.  (iluun,  84  Tenn. 
Vi;  (jilenn  v.  South.  Kx.  Co.,  H6  Tenn. 
6'.)4;  8  S.  W.  Ucp.  152;  Kaiser  r. 
lloey,  1  N.  V.  (8npp.)  421);  Ghorm- 
Icy  f.  Dlnsniore,  61  N.  Y.  (S.  C.) 
I'M;  llirschburg  r.  Uinsmore,  12  Daly. 
42y;G7Uo\v.  I'r.  103;  Weir  v.  Kxpress 
Co.,6rhila.  855. 

2  CJulf  etc.  n.  Co.  r.  Trawick,  G8 
Tex.  Mi ;  2  Am.  St.  Hep.  A'.H ;  4  S.  W.  Rep. 
6()7;  Thompson  v.  U.  Co.,  22  Mo.  (App.) 
321. 

3  Dawson  v.  K.  Co.,  70  Mo.  514 ;  Wabash 
etc.  U.  Co.,  f.  Black,  11  111.  (App.)  466; 
Chicago  etc.  U.  Co.  r.  .Simms,  18  111. 
(App.)  68;  McBeath  v.  11.  Co.,  20  Mo. 
(App.)  445, 

4  Mo.  I'ac.  U.  Co.  V.  Scott,  2  Tex. 
(App.)  324;  Italtimore  etc.  U.  Co.  v. 
C*oper,  6  South.  Rep.  327 ;  Dawnon  v.  R. 
Co.,  76  Mo.  614;  Texas  etc.  11.  Co.  v. 
Jackson,  3  Tex.  Civ.  Cas.  41. 

>>  Texas  etc.  R.  Co.  r.  Yonngblood,  23 
V.  &  E.  R.  R.  Cas.  600;  International 
etc.  R.  Co.  V.  Underwood,  62  Tex.  21 ; 
liiack  t'.  R.  Co.,  Ill  111.  351 ;  53  Am.  Rep. 
629;  Drown  V.  K.  Co.  18  Mo.  (App.)  568; 
Wabash  etc.  R.  Co.  v.  Black,  11  111. 
<  \pp.)  465;  Chicago  etc.  R.  Co.  v.  Simms, 
13  111.  (App.)  68. 


«  The  Santcc,  2  Ben.  419.  Such  a  pro- 
vision is  usually  found  in  the  ciirriage  ot 
live  stock.  U(>kK>u  v.  M.  Co.,  12  Kiis.  416; 
Rice  t>.  K.  Co.,  63  Mo.  314;  Sprajpiu  v.  R. 
Co.,  34  Ktis.  347;  Owon  r.  R.  Co.,  9  S.  W. 
Kip.  698  (Ky.) ;  Mo.  I'uc.  K.  Co.r.  Ilarris, 
67  Tex.  166;  ;  Texas  etc.  R.  (Jo.  v.  Scriv- 
ener, 2  Tex.  (App.)  Cus.  328; Texas  etc.  R. 
Co.  V.  Iliinim,  Id.  4%;  Texas  etc.  R.  Co. 
V.  Morris,  16  A.  K.  R.  K.  Cas.  259 ;  Galveston 
etc.  U.  Co.  V.  Boothe, .{  Tex.  Civ.  Cas.  304; 
Brown  c.  Adams,  Id.  .S92,  and  while  sus- 
tained in  some  cases  has  been  declared 
void  in  Tennessee,  Smithcr  v.  It.  Co., 6  S. 
W- Hep.  209.  As  to  what  is  "removing" 
or  "iuterniinpliuK"  see  Chicago  etc.  R. 
Co.  f.  Abels,  GO  Miss.  1017.  The  phrase 
"before  or  at  the  time  the  stock  is  un- 
loaded,'' is  not  limited  to  the  identical 
moment;  the  notice  need  only  be  so  im- 
mediute  that  its  object  may  be  obtained. 
Gogffin  V.  R.  Co.,  12  Kas.  416. 

T  I'acillc  Ex.  Co.  i>.  Darnell, OS.  W.  Rep. 
765  (Tex.);  South.  Ex.  Co.  v.  Caperton, 
44  Ala.  101 ;  Adams  Kx.  Co.  v.  Reagan,  29 
Ind.  21 ;  Porter  r.  South.  Kx.  Co.,  4  S.  C. 
IX) ;  Central  etc.  R.  C:o.  v.  Soper,  69  Fed. 
Rep.  879.  In  Kxpress  Company  v.  Cald- 
well, 21  Wall.  264,  a  limitation  ot  ninety 
days  from  the  time  of  its  receipt  by  the 
company,  was  considered  lawful  and 
binding,  and  not  unreasonable  where 
the  time  for  the  transit  ot  the  package 
was  only  one  day. 

237 


i 


m 


§158 


MODIFICATION  OF  LIABILITF. 


[part  II. 


quiring  claim  to  be  made  before  the  property  is  re- 
moved, is  not  reasonable,  as  to  latent,  defects  or  prop- 
erty which  cannot  well  be  examined  then.*  And  a 
condition  that  no  action  will  lie  against  the  carrier 
unless  commenced  and  citation  served  within  forty 
days,  is  void,  as  contrary  to  the  statute  governing  pro- 
cedure in  courts  of  justice,"  and  so  is  anj'^  condition  of 
the  kind  shortening  the  time  allowed  by  statute  for 
making  a  daim.^ 

2.  Where  notice  is  required  to  be  given  to  some  par- 
ticular officer  before  the  property  is  removed,  the  car- 
rier, when  sued,  must  show  that  he  had  an  otlicer  or 
agent  so  situated  that  the  iiiotice  could  be  giveu.'  In 
Texas,  where  the  contract  required  the  shipper  to  give 
notice  in  writing  of  any  claim  for  damages  to  some 
general  officer  of  the  carrier,  or  to  its  nearest  station 
agent,  within  one  day  after  the  delivery  of  the  cattle, 
and  before  they  were  removed,  slaughtered,  or  inter- 
mingled with  others,  it  was  held  that  the  burden  was  on 
the  carrier  to  show  that  it  afforded  the  shipper  reason- 
able facilities  to  ccmiply  with  the  contract;  and  where 
the  cattle  were  delivered  in  a  large  city,  in  which  it  was 
doubtful  whether  the  carrier  had  an  officer  known  as 
the  "station  agent,"  it  should  .  Iso  appear  that  the  shij)- 
per  knew  what  was  meant  by  the  term  "general  offi- 
cers," and  that  they  were  so  accessible  that  he  could 
have  reached  them,  by  the  exercise  of  reasonable  dili- 
gence, within  the  rcMpiired  time." 


1  rnpphart  r.  U.  Co.,  81  N.  C.  4H8;  31 
All).  lU'p.  BOS;  f;apcli:.it  r.  H.  (^o.,  77  N. 
(!.  355;  Memphis  ftc.  I{.  Co.  v.  Iloliowiiy, 
9  Uaxt.  ISH;  Orinsby  r.  11.  Co.,  4  Fiil.  Ui'p. 
76;  Sunforil  f.  K.  Co.,  11  Cush.  166. 

i  Gu\t,  etc.,  K.  Co.  t".  Hnme,  27  S.  W. 
Rep.  llOiTux.) 

»  Uulf,  etc.,  It.  Co.  f.  Onnn,28S.  W. 
Rep.  349  (Tex.). 

238 


••  Mo.  Pac.  R.  Co.  r.  Tlarris,  67  Tex.  16f ; 
2  S.  \V.  Uep,  674;  Mo.  i'ac.  K.  Co.  r. 
KaKan,  it  S.  W.  Uep.  7<9;  Mo.  I'ac.  K.  Co. 
!•.  Cornwall,  70  Tox.  t.'I;  8  8.  W.  Rpii. 
312;  (Jood  r.  R.  Co.,  11  ,s.  \V.  Rep.  K.M ; 
Mo.  etc.  R.  Co.  V.  Carter,  28  8.  W.  Hop. 
565. 

1  Missouri  etc.  K.  Co.  v.  ChilUrcsB,  27 
,H.  W.  Uep.  no. 


i'l 


CII.  XII.] 


MODIFICATION  OE  LIABILITY. 


§159 


3.  The  terms  of  the  notice  must  be  definite.  A 
clause,  for  example,  that  a  claim  must  be  presented 
within  a  given  time  in  unhr  to  irceii-c  attention,  is 
meaningless  and  unenforceable.*  The  time  runs  not 
from  the  day  of  the  loss  or  injury,  but  from  the  day 
when  it  is  ascertained.- 

The  requirements  of  the  notice  may  be  waived  by  the 
carrier.''  Thus,  where  an  unverifie<l  written  claim  was 
presented  when  the  contract  required  a  verified  one, 
and  the  carrier  received  it  without  objection,  ai>d  after- 
wards treated  the  claim  as  pending  for  adjustment 
upon  its  merits,  it  was  held  that  he  had  waived  the  ben- 
efit of  such  provisi(m.*  Though  the  contract  provide  that 
the  claim  must  be  nmde  in  writing  or  be  verified  by 
affidavit,  if  it  is  presented  orally  or  without  the  affi- 
davit, and  no  objection  is  made  on  that  account,  the 
requirement  will  be  treated  as  waived."' 

§  159.  Other  Conditions.  —  Many  other  con- 
ditions in  contracts  for  carriage  of  goods  have 
been  before  the  courts,  and  have  been  passed 
upon  from  the  point  of  view  o(  their  reason- 
ableness." Conditions  have  been  sustained  that 
the  owner  of  stock  shall  take  the  risk  of  dam- 
age through  delay;  or  of  their  being  injured  in 
consequence  of  heat,  suffocation,  or  being  crowded;" 
that  the  shipj)er  is  to  care  for  the  cattle  while  in 


^I'i- 


r.2 


%^ 


''  'ii 


1  Unnn  r.  R.  Co.,  68  Mo.  268 ;  Sanford  i: 
R.  ("0.,  U  Cosh.  IBG. 

2(.liormlfiy  r.  Dingmore,  51  N.  V.  (S. 
C.l  I'.iP;  .Sanford  r.  U.  Co.,  11  Cusb.  1IS5; 
(ilciiii  V.  South.  Kx.  Co.,  HOTenn.  594; 
8  S.  W.  Rep.  1B2 ;  Memphis  etc.  U.  Co.  v. 
Uollowy.y  Haxt.  188. 

:i<»weii  c.  U.  f'o.,  a  S.  W.  Rep.  841; 
Rice  r.  U.  Co.,  M  Mo.  .S14;  Cliicu(fO  etc. 
R.  Co.  V.  Katz«Dbacb,  118  Ind.  174;  2U  N. 


K.  Rep.  70it;  Uudson  v.  R.  Co.,  GO  N.  \V. 
Rep.  608  (III.). 

••  Wnbush  R.  Co.  f.  Brown, 39  N.E.Uep. 
27.1  (111.). 

»  Heiinett  v.  R.  Co.,  12  Oreg.  17 ;  G  Pac. 
Rep.  IfiO;  Rice  r.  R.  Co.,  63  Mo.  314; 
Texas  etc.  R.  Co.  v.  Vonngblood,  supra; 
International  etc.  R.  Co.  r.  Underwood, 
tupra. 

«  Dwyer  v.  R.  Co.,  7  S.  W.  Rep.  504. 

7  Squire  V.  R.  (,'o.,  iW  Mass.  2.TO. 

239 


1 
"I 


r 


§160 


MOrHFICATION  OF  LIABILII  Y. 


[part  II. 


transit,  and  attend  to  loading  and  unloading  them, 
and  assume  all  risks  incident  thereto.'  But  conditions 
are  unreasonable  that  before  a  consignee  can  obtain 
his  wheat  from  the  company's  bins  he  shall  receipt 
for  the  quantity;-  that  a  passengeron  a  steam  boat  shall 
not  take  into  his  state-room  such  baggage  as  he  may 
require  for  his  personal  use;''  that  the  carrier  shall  be 
liable  only  as  a  warehouseman  after  the  arrival  of  the 
freight  at  its  destination,  the  consignee  to  receive  and 
take  it  away  as  soon  as  it  is  ready — no  notice  of  its 
arrival  being  provided  for;*  that  the  shipper  will  ac- 
cept the  cars  furnishetl  him  for  his  stock ;'^  that  the 
shipper  would  furnish  to  each  conductor  in  whose 
charge  the  cattle  might  be  placed,  a  statement  of  their 
condition,  and  that  a  failure  to  furnish  such  report  to 
the  conductors  should  be  conclusive  evidence  that  the 
cattle  were  in  good  condition." 


§  160.  Bills  of  Lading:  as  Receipts  and  Contracts. 

— Originally,  a  bill  of  la  Mng  is  the  acknowledgment 
given  by  the  master  of  a  vessel  stating  the  receipt  of 
the  goods,  setting  out  the  engagement  to  carry  and 
deliver,  and  executed  in  triplicate,  one  copy  being  sent 
to  the  consignee,  one  retained  by  the  consignor  and  one 
by  the  master,"  In  the  i)reseut  day.  similar  documents 
are  issuwl  by  carriers  by  land  as  well  as  by  water.^  It 
is  at  once  a  receipt  and  a  contract     So  far  as  it  is  a 


1  Myers  f.  U.  Co.,  90  Mo.  98;  2  S.  W. 
Uep.2G3.  See  Hurt  v.  K.  Co.,  69  la.  488; 
2<J  N.  W.  Uep.  .V)7. 

2  Christian  v.  K.  Co.,  20  Minn.  21. 

•1  Mackliu  r.  New  Jersey  Steam.  Co.,  7 
Abb.  I'r.  (N.  .S.)  229. 

•«  I.onisville  etc.   U. 
Ala.  .'58. 

.'■  Cult  etc.  U.  Co.   v. 
Civ.  CtiB.  460. 

«  Mo.  etc.  U.  Co.  V. 
Kup.  565. 

240 


Co.  r.  Oden,  80 

Wilhelm.S  IVx. 

Carter,  29  .s.   W. 


'  Woosterr.  Tarr,8  Allen  270;  a5  Am. 
Dec.  707.  In  case  of  a  variance  the  one 
given  to  the  shipper  controls.  Ontario 
lik.  r.  Ilanlan,  2.<  Unn.  28;i.  As  between 
the  marks  or  the  kooiIm  and  the  tlesti- 
nation  in  the  hill  of  ladinft  the  latter 
controls.  Moore  r.  Ilonry,  18Mo.  (App.) 
35;  Wheeler  v.  U.  Co.,  .3  .Mo.   (App.)  358. 

H  A  currier's  receipt  and  a  hill  of  iading 
are  snbstantially  the  same  thing.  Uodge 
f.  .Meyer,  61  Cal.  405. 


en.  XII.] 


MODIFICATION  OF  LIABILITY. 


§  160 


receipt,  the  bill  of  lading  may  be  varied  or  controlled 
1)3^  piU'ol  evidence.'  The  (iiiantity  of  goods  i*eceived, 
the  cor  \ 'its  of  boxes  or  bales  or  the  like,  and  their 
value  ,.  condition,  may  be  shown  by  parol  to  be  dif- 
ferent ii'om  the  statements  regarding  them  made  in 
the  receipt.-  So  the  consideration  clause  may  be  con- 
tradicted, and  the  shipper  may  deny  that  the  goods 
were  sent  under  a  reducetl  tiiriff  of  charges.^ 

So  far  as  the  agreement  to  carry  and  deliver  is  con- 
cerned, it  is  a  contract.  lAko  all  other  contracts,  we 
have  seen  that  it  is  immaterial  whether  it  was  read 
at  the  time  of  signing  or  acce])ting  or  not,  or  whether 
anything  was  said  about  the  exceptions  contained  in 
it;  that  a  ])arty  entering  into  a  contract  is  presumed 
to  do  so  with  his  eyes  open,  and  in  the  absence  of  fraud 
or  mistake,  cannot  be  allowed  to  lead  the  other  to  be- 
lieve that  he  agrees  to  that  which  it  is  his  intention 
afterwards  to  repudiate.^  Like  all  other  contracts,  the 
writing  becomes  the  sole  evidence  of  the  final  under- 
standing, and  all  antecedent  agreements  or  undertak- 
ings are  merged   therein  and   t'Xtinguished  thei*eby.^ 


1  Hatch,  ('arr.  Wi:  Wayland  r.  Mosc- 
by,  r.  Ala.  430;  ,H'.t  Am.  Dt-c.  3;<f  Cox.  r. 
I'eterson.Sti  Alu.  f>08;  78  Am.  .>ec.  U.^; 
Meyer  r.  I't'C.k,  2S  N,  V.  ,V.K). 

-'The  Itlack  Warrior,  1  McAll.  181; 
Tlie  Orifliimiiic,  1  . •<««•}'.  ITG;  Carbon  r. 
ilurriH,  4CJ.  (jrocne.  61(i;  tJowdy  c.  I.yon, 
!i  H.  Mon.  112;  IJarrctt  v.  Kogcrs,  7  .Mass. 
'.^'.'7;  liirhards  v.  Doe,  1(H)  iMass.  524; 
.Seller  r.  Th«  I'acillc,  I  OrcKon  40'.t;Tho 
Martha  v.  Olcott,  14U;  The  Adriatic,  !) 
Cent.  L.  I.  201 ;  I  he  Nith,  .W  Fed.  Uep.M6; 
Hronty  v.  000  staves,  21  Fctl.  Kep.  690; 
Harwell  r.  J{.  Co.,  'M  N.  C.  4.M;()'Hrien 
r.  Oilchrist,  ;14  Ma.  ,'i84;  f)6  Am.  Dec.  «77; 
Wctzler  V.  ColliuH,  70  Mo.  2'M);  a.'i  Am. 
Uep..127;KtronR  r.  H.  Co.,  1,1  Mich.  20G; 
i«  Am.  Dec.  I8fi;  Itlade  v.  U.  Co.,  10  Wis. 
14;  Uissell  f.  Trice,  16  HI.  40H;  A  rend  f. 
Liverpool  S.  S.  Co..  t;  I.ans.  467;  64  llarb. 
118;  Kember  f.    8outb.  Kx.  Co.,  22  La. 


17 


Ann.  168;  2  Am  Hep.  719;  South.  Kx.  Co. 
r.  Ncwby,  H6  Ga.  6H5;  91  Am.  Dec.  738. 

••!  McKndden  r.  1{.  Co., 92  Mo. 343;  1  Am. 
St.  Kep.  721 ;  4  s.  \V.  Kep.  689;  see  Lonis- 
villo  etc.  1{.  Co.  r.  Wilson,  21  N.  E,  Itep. 
341. 

4  See  ante,  §  147. 

!>  Southern  Kx.  Co.  r,  Dickson,  94  U.  S. 
549;Collender  i'.  Dinsmore,  5.5  N.  Y.  200; 
14  Am.  Hop.  224 ;  l.oag  v.  |{.  Co.,  .10  N.  V. 
76;  HelRer  r.  Dinsmore,  51  N.  Y.  1G6;  10 
Am.  Kep.  573;  llinrkley  v.  U.  C().,66N. 
v.  429;  St.  Louis  etc.  It.  Co.  r.  Cleary,  77 
Mo.  634;  46  Am.  Uep.  l.f;  (iermania  Fire 
Ins.  Co.  r.  U.  Co.,  72  N.  Y.  90;  28  Am. 
Kep.  ll3;nosletterf.  U.  Co.,llAtl.  Kep. 
609  (Pa.);  Louisville  etc.  K.  Co.  w.  Wil- 
son, 21  N.  K.  Kep.  .141;  U'Ronrke  v.  220 
Tons  of  Coal,  1  Fed.  Hep.  G19;  The  Cale- 
donia, 43  Fed.  Uep.  631. 

241 


3^ 


Cp3 


*■;■" 


M 


161 


MODIFICATION  OF  LIABILITY. 


[part  II. 


And  like  all  other  contracts,  it  is  to  be  construed  ac- 
cording to  the  legal  import  of  its  terms,  and  cannot 
be  varied,  explained  or  contradicted  by  oral  evidence.' 
The  shipper  may  prove  a  collateral  agreement,  such 
as  that  the  carrier  agreed  to  carry  the  goods  to  a  point 
beyond  that  named  in  the  bill  of  lading.-  In  a  well- 
known  case,  A  had  arranged  orally  with  a  railroad 
to  carry  goods  for  him  to  E,  on  its  line,  and  thence  by 
a  connecting  line  to  K;  and  at  the  same  time  signed, 
without  noticing  its  contents,  a  consignment  note  by 
which  the  goods  were  directed  to  be  taken  to  E.  Parol 
evidence  was  admitted  to  show  an  agreement  to  carry 
on  to  K.^  And  fraud,  mistake  or  duress  in  the  making 
of  the  contract,  may,  of  course,  be  shown.^ 

§  IGl.      Effect   of   the    Special    Contract.  —  The 

making  of  a  s[)ecial  contract  limiting  the  carrier's  re- 
sponsibility, does  not  change  the  character  of  his  em- 
ployment— he    remains    a    common    carrier    under    a 


1  Bank  of  Kentncky  i-  Adams  Ex- 
press Co.,  93  U.  S.  1(4;  York  Company  r. 
K.  Co.,  3  Wall.  10";  Grace  i'.  Adams,  100 
Mass.  SOo;  ;»7  Am.  Dec.  117;  Wells  f. 
Steam  Xav.  Co.,  8  N.  Y.  3T5;  Dorr  i:  New 
Jersey  .steam  Nav,  Co.,  11  N.  Y.  485;62 
Am.  Dec.  125;  Kirklaud  r.  Dinsmore,  62 
\.  Y.  171 ;  20  Am.  Uep.  47.') ;  White  v.  Van 
Kirk,  2.')  Uarb.  Ifi;  Wolfe  r.  Jlyera,  8 
Sand.  7;  Cox  i:  Peterson,  SO  Ala.  r,08 ;  68 
Am.  Dec.  145;  Wayland  v.  Moseby,  5 
Ala.  430;  .S!t  Am.  Dec.  .S.S5;  Roberts  v. 
Riley,  15  La.  Ann.  103;  77  Am.  Dec  183; 
Indianapolis  etc.  R.  Co.  r.  Remmy,  13 
Ind.  518;Oppeulieimcr  r.  t'nited  States 
Kx.  Co., 69  111.  62;  18  Am.  Kep.  696;  I'em- 
bertonCo.  i:  R.  Co.,  104  Mass.  144;  Hop- 
kins r.  R.  Co.,  29  Kas.  644;  Wichita  Hk. 
f.  R.  Co.,20Kas.  619;  Mhite  r.  Ashton, 
61  N.  Y.  280;  Garden  Grove  Ilk.  v.  II.  Co., 
67  la.  526;  25  N.  W.  Rep.  761 ;  Wetzler  v. 
CoUins,70Me.290;.%Am.  Rcp.,S27;  I'etrie 
r.  Heller,  35  Fed.  Rep.  310;  Snow  r.  R. 
Co.,    109    Ind.   422;    9    N.  E.  Rep.   702^ 

242 


In  Collender  v.  Dinsmore,  supra,  it  was 
said:  "There  are  cases  holding  in  ef- 
fect that  the  prior  negotiations  an<l 
conversation  of  the  parties  can  be  given 
in  evidence,when  there  is  an  ambiguity, 
to  show  in  what  sense  particular  words 
or  phrases  were  used  by  the  parties  in 
making  the  contract,"  citing  Selden  r. 
Williams,  9  Watts  9  (1839) ;  Gray  r.  Har- 
per, 1  Story  574  (1841) ;  Kembl<!  v.  Lull,  3 
McLean  272  (1843).  llut  Kemble  f.  Lull 
decides  nothing  of  the.  kind.  The  conrt 
only  remarked  that  there  was  noam- 
bigaity  in  the  contract,  and  that  parol 
evidence  was  not  admissible  to  explain 
or  vary  it. 

2  Halt.  etc.  R.  Co.  f.  Itrown,  54  I'a.  St. 
77;  Savannah  otc.  R.  Co.  v.  Collins,  77 
Ga.  376;  I'creira  r.  R.  Co.,  66  Cal.  92;  4 
I'ac.  Bep.  988;  Riley  r.  R.  Co.,  34  Hun. 
97;  contra,  Hcwett  d.  R.  (,'o.,63  la.  611. 

3  Malpas  V.  R.  Co.,  L.  R.  1  C.  1'.  336,  ex- 
plained in  Lawson  Contr.  §  37H. 

*  Ante  §  162.  See  Lawson  Contr.  Cap.  VI. 


CH.  :-ii.] 


MODIFICATION  OF  LIABILITY. 


§161 


limited  responsibility,  and  does  not  become  an  ordi- 
nary bailtH?  for  hire.*  Mr.  Justice  Story,-  citing  an 
early  English  case,"*  has  raised  the  question  without 
answering  it,  whether  if  a  carrier's  contract  contain 
certain  exceptions  to  his  liability,  but  omit  those  which 
the  common  law  allows  for  his  benefit — the  act  of  God 
and  the  public  enemy — the  express  exceptions  do  not 
exclude  the  implied  ones,  in  accordance  with  the 
maxim  cxpirsNio  iniitis  (sf  r.rcliisio  altcriK,"!.*  Modern 
bills  of  lading  in  the  carriage  of  goods  by  water  have 
in  England  always  contained  all  the  common  law  ex- 
ceptions, and  the  i)oint  has  not,  therefore,  arisen  dur- 
ing this  centurv  in  that  country."'     In  an  early  case  in 


1  Railroiid  Co.  r.  Lockwood,  17  Wall. 
3i57;  .Mich.  (Viit.  U.  Co.  r.  Half,  fi  Mich. 
24.');  Daviilson  r.  (irahain,  2  Oliio  St.  131; 
(iraham  r.  Davis.  4  M.  .Hil'J;  Swindler  t'. 
Ililliani,  2  Hich.  2111;  I'arkcr  r.  1Jriii,>ioii, 
!•  Id.  2111  ;  Steele  c.  Townseiid,  HT  .\la.  247. 
The  contrary  ha.<  been  incorrectly  as- 
sumed by  sonic  Judtres.  Sco  1'cnn.t',  K. 
Co.,  411  N.Y.  2.14:  Lake  Shore  etc.  U.  Co. 
f.  IVrkins.  2.1  .Mich.  .'<2<.t. 

2  story  Mail.  §  .irxl. 

3  The  case  referred  to  is  Hover  r.  Toni- 
linscin  (K'.'ii),  thu.s  stated  in  Abbott  on 
Shippin;;  (tith  Am.  cd.)  p.  4.  cap.  li,  p.  .'tSd: 
"111  a  case  wliich  came  before  the  Court 
of  Kintr's  llench  a  short  time  before  the 
late  alteration  of  the  bill  of  lading  and 
which  was  an  action  liroiiftht  to  recover 
the  value  of  goods  for  which  the  master 
had  signed  a  bill  of  lading  contuiniiiK  an 
exception  only  of  the  pi'rils  of  the  sea, 
allhoiigh  made  during  the  time  of  a  war, 
and  which  goods  were  lost  in  consc- 
iiuence  of  the  ship  being  ilesignedly 
struck  by  the  vessel  of  an  eiH'iny  ;  it  was 
doubted  by  the  court  whether  ii  loss  so 
occasioned  were  within  the  meaning  of 
this  exception,  and  the  cause  never  pro- 
ceeded ton  llnal  judgment.  The  express 
exception  in  this  ease  alForded  room  to 
coutcn<l  that  the  ex<'eption  of  the  act  of 
the  King's  enemies,  which  arises  out  of 
general  rules  of  law,  was  meant  to  be 
excluded  iu  the  piirticulur  iustuncu," 


4  The  express  mention  of  one  thing  im- 
plies the  exclusion  of  another.  See 
Ilroom  Leg.  Max.  f'i2t;. 

5  In  Scalfe  r.  Karrant,  2.S  W.  U.  4r.!1,S4n: 
2  Cent.  I..  .).  H*^:!,  >W>  (ls7rj) ;  thedefiMidant 
was  a  wagoner  who  receiveil  furniture 
for  removal  under  a  contract  by  which 
he  took  the  risk  of  breakage  not  exceed- 
inn  "I  <"'  a".^'  •"•i"  article.  The  furniture 
was  acc'di'iitally  burned  oi  rimtr,  and  it 
was  In  ill  that  he  was  not  ropousible. 
Hrarr.well.  I!.,  saying:  "The  case  does 
not  stand  on  the  cominon  law  of  carrier 
and  customer,  'ibis  man  says:  '1  will 
take  goods  not  in  a  lit  condition  to  travel 
and  will  put  tliein  in  a  condition  to 
travel,"  which  is  not  the  onlinary  case  of 
carrier  and  customer.  Then  he  says  in 
his  letter  that  his  terms  are  '£22  lOs., 
with  risk  of  breakage!  in  transit.'  This 
means  'I  will  take  on  me  risk  of  break- 
age ill  transit.'  If  he  were  a  cimimou 
carrier  he  would  undertake  not  only  this 
risk  but  all  risks.  Hut  he  says'l  under- 
tak(!  for  one  particular  risk.'  Why  do 
not  the  general  rules  apply— 't'.r/»rft(gi<> 
uiiius  eat  ejcclugio  altcriun,'  and  e.rpresitiitn 
faett  rcisare  tacitumt"  That  is  to  say,  the 
defendant  stipulates  not  to  be  liable  tor 
anything  ebe.  No  doubt  lie  would  lie 
liable  for  failure  in  the  use  of  ordinary 
skill,  because  ordinary  care  is  not  ex- 
cluded." 

243 


r 


§162 


MODIFICATION  OF  LIALIUTY. 


[part  II. 


South  Carolina,  it  was  said  that  if  a  common  carrier 
specially  nnderinke  to  deliver  safely  any  article  car- 
ried, he  will  be  bound  by  his  undertaking?  to  answer 
for  the  loss,  althouj;h  it  may  hapi)en  from  a  cause 
which  in  the  absence  of  an  express  contract  w(,uld  ex- 
cuse him;'  and  in  (leorj^ia,  where  a  wa}j;oner  iontracteil 
to  deliver  certain  jjackages  in  ji;ood  order  and  conflition, 
"unavoidable  accidents  only  excepted,"  it  was  held 
that  this  ex<-ei»tion  excluded  all  others,  ami  that  there- 
fore he  wouhl  be  liable  for  a  loss  by  the  public  enemy. - 
But  in  Massachusetts  it  has  been  ruled  that  a  ship- 
owner did  not  enlarj;*'  his  common  law  liability  by 
sij^niuf?  a  bill  of  ladinjj;  in  which  he  stii)ulated  that  the 
•roods  should  be  «leliver(Ml,  the  "danjiers  of  the  seas 
only  excepted,"  so  as  to  be  liable  for  a  loss  arising?  from 
the  act  of  a  public  en^'iny.'' 

§  162.  Contracts  Strictly  Construed  Agrainst  the 
Carrier.  — While  it  is  competent  for  common  carriers 
to  provide  by  ((tntract  for  exemi)tion  from  their  com- 
mon law  liability,  it  must  be  done  in  clear  and  unam- 
bipfuous  lan<;iiajie,  and  the  rule  that  the  lan<;ua<ie  of 
contracts,  if  aml)i«^U(»us  is  to  be  construed  aj^ainst  the 
party  usinjj;  it,  is  rij^idly  aj)plied  to  such  contracts.* 


1  «;althiir  f.  Iturtiet,  2  nrev.  48H.  The 
reporter  sjicaks  of  the  Iohh  hi  this  caxr 
as  un  "iinavDJdiibU'  ucculeiit,"  bill  it  is 
clear  from  the  opinion  tliiit  tlilH  pliraHO 
is  asfd  liy  him  iia  ajnonymous  with  the 
"act  of  <;o(l." 

2  Kish  f.  Chapman,  2  <ia.  .')4;t. 

■I  (iago  t'.  Tirrcll,  9  Allen  2y».  See  U. 
S.  IV  Power,  0  .Mont.  271. 

<  Kditall  f.  Caniilen  etc.  K.  Co.,  50  N. 
Y.  Wl ;  Magnin  r.  Diiismoru,  5fi  X.  V. 
1H8;, Steele  v.  Townsena,  37  Ala.  247;  7i» 
Am.  Oec.  4'.t;  A.vri-s  v.  It.  Co.,  14  Ulatchf. 
It;  Union  .Mut.  Ins.  Co.  r.  K.  Co.,  1  Disney 
480;.«t.  L.  etc.  It.  Co.  V.  Sniuck,  4'.i  Inil. 
802 ; Barter  r.  Whei'ler,  4!t  .N.  II.  !•;•'.  Am. 
Kep.  43%;  Southera  Kx.  Co.  t-,  iMoon,  31) 

244 


.MisB.  8.32 ;  Hooper  r.  Wells,  27  Cnl.  11 ;  85 
.\m.  Oec.  211 ;  New  Jersey  Steam  Xar. 
<'o.  f.  Merchants'  ](ank,r>  Ilow.  .144;  In- 
diana etc.  U.  Co.  r.  Munday,21  Iiid.  48; 
8:i  Ani.Der. ;«!);  Kcverinn '••Cnion  'I'mns. 
Co.,  42  .Mo.  88;  97  Am.  l»t'C.  .Tid  ;  Ilosen- 
fold  r.  It.  Co.,  103  Ind.  121;  r>;t  Am.  Uep. 
601 :  2  N.  K.  Uep.  344;  Overland  .Mail  Co. 
r.  Ciirroll,  7  Colo.  4H ;  1  I'ac.  Uep.  082; 
(iionstadt  v.  Wittholf,  15  Fed.  Uep.  266; 
■Marx  r.  Nat.  S.  S.  Co.  22  Fed.  Uep.  08(1; 
Little  Uock  etc.  U.  Co.  r.  Talbot,  ;«» Ark. 
523.  The  rule  that  contracts  arc  to  be 
construed  according  to  the  law  of  the 
place  where  they  arc  made  (UiWHon 
Cont.  §  ;<47),  applies  to  the  contracts 
of  common   curriers.     Canta    v.  lien- 


CH.  XII.] 


MODIFICATION  OF  LIABILITY. 


§162 


An  exemption  from  a  loss  or  damage  through 
any  particular  cause  "vvill  never  be  construed  to 
cover  a   negligent  loss  of   that  charact^er.^     An   ex- 


nett,  39  Tex.  303;  Penninsnlar  etc. 
Co.  f.  Shand,  11  -Inr.  (U.  S.)  771; 
I'enii.  Co.  V.  Fairchild,  99  111.  200; 
Hale  f.  New  Jersey  etc.  Co.,  15  Conn. 
637;  First  Nat.  Bk.  v.  Shaw,  61  N.  Y.  283; 
lloadley  r.  North.  Trans.  Co.,  115  Mass. 
as."!;  Kobinson  v.  Merchts.  Trans.  Co., 
i^  la.  470. 

1  Ashmore  f.  Penn.  Steam  etc.  Co..  28 
N.J.  [L.)  1«0;  Memphis  etc.  U.  Co.  v, 
Jones,  2  Head.  517;  Indiana  etc.  K.  t;o.  r. 
Munday,  21  Ind.  48;  New  Jersey  .Steam 
etc.  Co.  f.  Merchants'  Uk.,  6  How.  344. 
Kven  in  New  Tork  where  the  power  to 
contract  against  negligence  is  conceded 
the  intent  to  exclude  negligence  of 
the  carrier's  servants  must  appear  in 
the  contract  in  plain  terms,  for  if  negli- 
gence Is  not  expressly  excluded  the 
presumption  will  be  that  it  wiis  not  in- 
tended by  the  parties  to  bo.  Magnin  v. 
Uinsraore,  66  N.  Y.  168;  Condict  r.  U. 
(!o.,.'i4N.  Y.  600;  Lamb  c.  1{.  Co.,  46  N. 
Y.  ,i71 ;  7  Am.  Kep.  327 ;  2  Ualy  454  ;  Knell 
c.  U.  S.  .Steamship  Co.,  23  N.  Y.  423; 
French  v.  U.  Co.,  4  Kcyes,  108;  2  Abb. 
App  IKC.  19B;  Smith  r.  K.  Co.,  29  Harb. 
132:24  N.  Y.  222;  Stoddard  v.  U.  Co.,  5 
.Sandf.  180;  Kdsall  f.  K.  Co.,  50  N.  Y.  661 ; 
(iuillaunie  r.  Hamburg  etc.  Packet  Co., 
42  N.  Y.  212;  Gleadell  v.  Thomson,  66  N. 
Y.l'.t4;  Stedmnn  r. Western  Trans.  Co., 48 
Harb.  97;  .\lexandcr  r.  Greene,  7  Hill 
r,.ii;  Camden  etc.  II.  Co.  v.  Burke,  13 
Wend.  611 ;  Moore  r.  Kvans,  14  Harb.  524 ; 
Westcolt  V.  Fargo,  63  Harb.  349;  Wells  r_ 
Steam.  Nav.  Co.,  8  N.  Y.  376;  Wooden  r. 
Austin,  61  Harb.  9.  Thus  an  excep- 
tion simply  of  a  loss  by  lire  will  not 
cover  a  negligent  lire.  Condict  »•.  K.  Co., 
tupra;  f.amb  r.  K.  Co.,  ««;)r«;  Holsapple 
V.  H.  Co.,  80  N.  Y.  275;  Steinweg  t'.  K. 
Co.,43N.  Y.  123;  nor  will  a  release  of 
loss  or  injuries  "  from  whatsoever  cause 
■  rising,"  Mynnrd  v.  K.  Co.,  71  N.  Y.  180; 
n  Am.  Hep.  28;  Smith  r.  U.  Co.,  27  Harb. 
132;  24  N.  Y.  222.  Though  goods 
are  sent  at  "owner's  riwk,"  the  car- 
rier is  still  liable  forn  negligent  loss  or 
injury.    Camden  etc.  U.  Co.  v,  Unrke,  13 


Wend.  611 ;  Moore  v.  Evans,  U  Barb.  624 ; 
Alexander  v.  Greene,  7  Hill  533 ;  \Vella  v. 
Steam  Nav.  Co.,  8  N.  Y.  375;  Westcott  v. 
Fargo,  63  ISarb.  349 ;  Wooden  v.  Austin, 
61  Barb.  9.  In  the  light  of  those  a  ■- 
thoritics  the  ruling  in  the  New  York 
caseof  Cragin  r.  R.  Co.,  61  N.  Y.  61;  10 
Am.  Kep.  559  (1S72),  is  peculiar.  Here 
the  railroad  undertook  to  carry  a  car 
load  of  hogs  from  Buffalo  to  Albany, 
under  an  agreement  whereby  the  ship- 
per assumed  the  risks  of  injuries  from 
"  heat,  suffocation,  •S.-c."  The  hogs  died 
from  the  effects  of  heat,  the  result  of 
the  negligence  of  the  defendant's  serv- 
ants in  not  watering  them  and  cooling 
them  by  wetting.  The  Commission  of 
Appeals  held  that  the  defendants,  as 
common  carriers  of  cattle,  were  not  in- 
surers of  them  againsttlie  consequences 
of  their  own  vitality.  In  the  absence  of 
any  restrictive  contract,  if  the  defend- 
ants provided  proper  cars  and  exercised 
reasonable  care,  they  were  not  respon- 
sible for  such  of  the  animals  as  might 
perish  from  heat.  Therefore  the  limita- 
tion was  unnecessary.  "  If  it  be  held," 
said  Karl.,  C,  "tnat  this  stipulation  sim- 
ply exempts  the  defendant  from  lia- 
bility for  injuries  to  the  hogs  from  heat 
without  any  fault  on  its  part,  then  it 
gets  nothing;  for  in  such  case,  without 
the  stipulation  it  would  not  be  responsi- 
ble. Force  and  effect  can  be  given  to 
this  stipulation  only  by  holding  that  it 
was  intended  to  excm|)t  the  defendant 
from  negligence  in  consequence  of 
which  the  -hogs  died  from  heat." 
Subsequently  the  New  York  court  has 
fought  shy  of  this  ruling  contenting  it- 
self with  "distinguishing"  it  without 
actually  overruling  it.  In  Mynord's 
cose,  supra  (1877),  Church,  C.  J., 
who  delivered  the  opinion,  did  not  think 
"under  the  peculiar  stipulation  and 
the  character  of  the  property  in  that  case 
that  it  is  in  conflict  with  the  views  above 
expressd  viz. :  thiit  an  exemption  from 
liability  'from  whatsoever  cause  aris- 
ing' did  not  include  u  loss  arising  through 

240 


'a 

CO 
be* 


m 


§162 


MODIFICATION  OF  LIABILITY. 


[part  II. 


emption  from  liability  for  dairiage  to  oranges  from 
the  "effect  of  climate"  will  not  protect  the  carrier  who 
lands  them  on  a  wharf  on  a  day  so  cold  that  they  freeze 
there.*  An  exemption  from  liability  for  "any  damage" 
must  be  read  as  if  followed  by  the  clause  "not  caused 
by  negligence."^  An  exemption  from  liability  for  "de- 
cay" of  meat,  covers  only  its  inherent  tendency  to  de- 
cay, and  not  decay  caused  by  negligence  of  the  can-ier.-' 
An  exemption  from  responsibility  for  "delay,"  does  not 
cover  a  negligent  delay.^  An  exempt i<m  fi*om  liabil- 
ity for  "detention,"  will  not  cover  damage  to  the  goods 
caused  by  the  carrier's  servants  neglecting  to  mark 
the  charges  as  paid,  whereby  they  were  detained  on 
their  arrival,  under  a.  groundless  claim  of  charges.'^ 
The  word  "errors,"  in  a  contract  means  mistakes,  and 
not  waste  or  negligence."  Though  the  carrier  is  made 
not  responsible  for  damages  occasioned  by  "escajjcs 
from  any  cause  whatever,"  he  is  still,  liable  for  an  "es- 
cape" occasioned  by  his  negligence,  or  where  such  neg- 


nepltrt.  In  rrolsapple  v.  U.  Co.,  supra 
(18S1)  the  casi'  was  distin^jaisluil  in  thf 
same  way.  IJiit  in  Niclidlas  r.  K.  Co.,  h'.t 
N.  Y.  .170  (18K.')  whuri-  the  property  was 
fruit  tre(^s  shii)pe(l  tinder  a  release  of 
liability  for  ilatnage,  occasioned  l)y  lie- 
lays  from  any  canse,  or  change  of 
weather,  or  loss  or  injury  by  lire  or  water, 
heat  or  cold,'  the  release  had  heen  con- 
strned  by  the  Supreme  Court  to  relieve 
the  defendant  from  liability  for  a  loss  by 
freezinir  occasioned  by  the  nejrligence  of 
the  defendant's  servants.  The  Cragin 
case  was  indorsetl,  and  itsreasoninft  fol- 
lowed. Cold,  said  the  Court  against 
which  the  carrier  could  not  truard,  was 
the  "act  of  God,"  for  which,  at  common 
law,  he  was  not  resiionsible,  and  "to 
frive  any  force  to  the  terms  in  the  release" 
the  risk  of  the  carrier's  ncKlinently  ex- 
posing the  xoods  to  the  cold  must  be  in- 
corporated in  the  release.  Nicholas  r. 
11.  Co.,  6  Thonip.  &  V.  filHi;  4  llun.  .S27. 
Hut  the  Court  of  .Vjipeals  reversed  the 
Judgment  of  the  .Supreme  Court  and  held 

24G 


the  carrier  liable.  This  time  thou;:h 
practically  overruling  it  the  Court  did 
not  refer  to  the  Cragin  case.  The  Cra- 
gin  case  is  clearly  wrong;  for  a  loss  oc- 
casione(l  by  the  act  of  (iod  or  the  public, 
enemy  a  carrier  is  still  liable  if  it  be 
brought  about  by  his  own  negligence. 
Hut  if  it  is  correct,  the  simple  fact  that 
the  bill  of  latling  or  other  contract  sets 
out  these  exemptions,  is  siitllcientto  ex- 
cuse the  carrier  tor  a  negligent  loss  of 
this  descrijition.  There  is  no  authority 
for  such  a  conclusion  in  any  Knglish  or 
American  adjudication. 

1  The  Aline,  'J.S  Itlatclif.    3.T5,  26  Fed. 
Kep.  5i;2. 

2  The  niidji,20  Fed.  Kep.  875;  Czech  r. 
(ien.  Steam  Nav.  Co.,  L.  U.  .S  C.  1'.  14. 

3  Sherman  r.  Inman  S.  S.  Co.,  2fi  Uun. 
107. 

•t  Uerje  v.  U.  Co.,  37  I,a.  Ann.  4r*;  Mc- 
Kay f.  U.  Co.,  H  N.  Y.  (Supp.)  708. 
s  (iordon  r.  U.  Co.,  I..  K.  82,  H.  Div.  44. 
6  Sanford  r.  R.  Co.,  U  Cush.  l.W. 


CU.  XII.] 


MODIFICATION  OF  LIABILITY. 


§162 


;f 


llgence  was  an  active  and  co-oporating  cause  in  pro- 
ducing it.*  Though  the  shiitjuT  of  stwk  agrees  to 
"feed,  water  and  take  proper  care  of  them,"  the  car- 
rier is  still  liable  if  he  neglects  to  furnish  adequate 
vehicles  to  afford  the  owner  reasonable  opportunities 
to  care  for  them,  and  subjects  them  to  unnecessary 
delay  in  transportation,-  or  negligently  carries  them 
bevond  their  destination.-'  The  exception  of  "tire"  will 
never  cover  a  negligent  lire.*  An  exemi)tion  from  lia- 
bility for  freezing  will  still  leave  the  carrier  liable 
for  freezing  resulting  from  failure  to  fonvard  with 
reasonable  dispatch."'  The  phrase  "inherent  deteriora- 
tion," will  not  excuse  the  delivery  of  fruit  in  a  decayed 
condition,  which  it  is  shown  was  so  stowed  by  the  car- 
rier as  not  to  permit  proper  ventilation,  and  therefore 
rotted.'*  The  condition  "not  to  be  acc(Uintable  for  leak- 
age or  breakage,"  protects  against  unavoidable  losses 
of  this  kind,  leaving  the  <'arrier  still  res])onsible  for 
want  of  skill  or  care  in  the  handling,  stowage  or  deliv- 
ery of  the  goods.''     An  exce])ti<>n  of  any  "loss"  will  not 


1  Oxlcy  r.  11.  f'o.,  G5  Mo.  ()2<>. 

8  .S)Ulii.  etc.  U.  Co.  V.  nciilcin,  52  .Mil. 
Cmi;  Walia-hitc.  U.  Co.  r.  I'liitt,  ir>  III. 
(.Vjip.)  177.  Dunn  v.  K.  ('(>.,r,s  Mo.  •Jim. 

•1  Urvantf.  U.  Co.,  liH  (in.  wi6. 

i  New  Orli'un,-  Ins.  Co.  r.  If.  Co.,  20  I,a. 
Ann.  »):>;  Levy  f.  K.  Co.,  2:i  I.a.  .\nn.  477; 
York  Co.  r.  K.  Co.  ,.S  Wall.  lu7.  Hank  of 
Ki'iitncky  f.  Adams  Kxprcss  Co. '.i.'l  C  S. 
174;  Kric  K.  Co.  f.  I-ockwooil  2S  Ohio  St. 
.fW;  Michigan  etc.  U.  Co.  f.  Ilcaton,  37 
lull.  448;  10  Am.  Ucp.  H'.i;  Stcilman  i:  West 
Trans.  Co.,4H  Haib.  iC ;  I.anili  v.  U.  Co., 
41',  .N.  V.  •.'71 ;  7  Am.  Ucji.  .127;  Condict  r.  U. 
( 'o.,  54  N.  V.  Mi> ;  I'ciiibcrton  ( 'o.  r.  K.  ( 'o., 
104  Mass.  144;  .Mont^iciincry  K.  Co.  r.  Kd- 
nionds,  41  Ala.  (Hi";  Kmpire  Trans.  Co.  v. 
Oil  Co.,  r.a  I'a.  ,«<t.  14;  .(  Am.  iJcp.  515; 
l"(nvcllf.  U.  Co.,:)2l'a.  St.  14;  75  Am.  Dec. 
5r,4;  Stcinwctr  v.  U.  Co.,  4:!  N.  V.  12.1;  H 
Am.  Ki'p.  G7;<;  I'olton  v.  U.  Co.,  07  I'a.  .><t. 
211;5  Am.  Ucp.  424;  Scrujfps  r.  K.  Co.,B 
McCrcary,690;  Orey  v.  Mobilu  Trade  (.'c, 


B6  Ala.  3«7;  2H  Am.  Hep.  72'.t;  New  Orleans 
etc.  U.Co.  z:  Kali'r,5H.Miss.  '.Ml ;  Louisville 
etc.  K.  Co.  r.  Odon,  80  Ala.,  'M;  Insur- 
ances Co.  f.  St.  I.otlis  etc.  1{.  Co.,  3  Ke<l. 
Hep.  811;  Hand  r.  .Merchants  Dcsjiatch 
(.'o.,.V.t  N.  H.  H(i:t;  Little  Rock  etc.  It.  Co. 
I'.  Talhot,  ;)'.<  Ark.  .V.'.t ;  47  Id.  ;i7 ;  I.itlle 
Uock  etc.  I{.  (<..».  Harper.  44  Ark.  208; 
MontKomery  K.  Co.  r.  Kilmonds,  41  Ala. 
667;  The  City  of  Norwich,  H  Hen.  .^76; 
Chic-atto  etc.  U.  Co.  r.  .Moss,  00  Miss.  1003. 

."•  Ueed  V.  H.  Co.,  00  Mo.  I'.Kl;  Wolf  v.  U. 
Co.,  4.)  .Mo.  421;  see  The  Alesiu, .%  Fed. 
Hep.  5:u 

«  The  America,  8  Hisn.  491. 

7  I'hilips  r.  Clark,  2  C.  ».  (N.S.)156,  3 
.Jiir.  (N.  S.)  407,  20  I,.  .1.  C.  I*.  IfiH  (18,57) ; 
Steele  f.  Townsend,  .H7  Ala.  247;  The 
I'ererie,  8  Hen.  ,H01 ;  Si.\  Hundred  and 
Thirty  Casks,  14  Itlatchf.  517;  The  David 
and  Caroline.  5  lllalchf.  201!;  The  Delhi, 
4  Men.  :<45;  Keno  v.  lluKan,  12  11.  .Men.  O:) 
(1851) ;  The  Invincible,  1  Low.  256;  Dede- 

247 


r 


:3» 


§102 


MODIFICATION  OF  LIABILITY. 


[part  ir. 


cover  a  negligent  loss.*  The  term  "owner's  risk,"  imports 
that  the  owner  assumes  the  risks  arising  from  the  or- 
dinary dangers  of  transportation,  which  the  reasonable 
and  ordinary  care  of  the  common  carrier  might  be  in- 
suflQcient  to  prevent,  and  the  latter  is  liable  only  for 
those  dangers  which,  with  ordinary  care  and  prudence, 
might  be  avoided,-  but  is  still  answerable  for  his  own 
negligence  or  misconduct,  or  that  of  his  servants  or 
agents.^  An  exception  of  liability  for  "rust,"  will  (ex- 
cuse rust  caused  by  the  sweat  or  moisture  of  the  place 
where  the  goods  are  stowed,  but  not  rust  arising  from 
the  entrance  of  water  through  an  insuflflcient  ceiling 
in  the  ship.^  But  the  burden  of  proving  that  the  water 
reached  the  goods  through  the  negligence  of  the  car- 
rier, is  upon  the  shipper."'  An  exemption  of  liability 
for  "stranding,"  will  not  apply,  if  the  vessel  was 
stranded  b}'  reason  of  the  master's  negligence  in  mis- 
taking his  course  and  position,  failing  to  heed  fog 
lights,  and  a  signal  gun,  and  failing  to  take  soundings 
when  it  clearly  was  his  duty  to  do  so."     An  exemption 


kam  f.  Vosc,  3  niatchf.  44 ;  Ilunnuwcll  r. 
TaluT,  2  Sprajrne,  1;  The  O.-illaninif, 
1  Sawy.  ITfi;  The  Olbrrs,  3  IJcn.  148; 
Vauplian  r.  Six  hiindrod  and  Thirty 
Casks,  7  Hen.  506;  Kocnitrsheiu  r.  Uum- 
huTH  etc.  Packet  Co.,  17  Week.  Dip.  4o5; 
I'ari'v  r.  Atkins,  6  Hen.  fifi'J;  Nelson  v. 
National  Steamship  Co.,  C  Hen.  340;  The 
Colon,  9  Hen.  3,'">4.  Where  a  railroad 
transportin.e  a  niiiTor  over  its  road  at  the 
"owner's  risk  as  rejrards  breakajte," 
placed  it  along  with  afrrieiiltural  imple- 
ments and  other  heavy  freight  in  a  nar- 
row passage  way,  through  which  drays 
and  other  vehicles  were  constantly  pass- 
ing, and  it  was  there  struck  by  a  passing 
dray  ami  broken,  the  company  was  held 
liable.  Missouri  etc.  U.  Co.  v.  Caldwell, 
8  Kas.  244. 

1  Jennings  r.  U.  Co.,  5  N.  Y.  (Sapp  ) 
140:  The  Kgypt,25  Fed.  Rep.  320. 

2  French  t-.H.  Co.,  4  Keyes  108;  2  Abb. 
App.  19G;Haltimore  etc.  K.  Co.  v.  Uatb- 

248 


bone,  1  W.  Va.  87 :  88  Am.  Dec.  B64 ;  Mor- 
rieonf.  rhillipsCo.,44  Wis.  405;  28  Am. 
Uep.  599. 

3  Schieffelin  f.  Harvey,  6  Johns.  170 
170;  6  Am.  Dec.  206:  Anth  57;  Alexander 
t". Greene, 7  Hill  5.33;  Moorer.  Kvans,  14 
Harb.  624;  Wells  r.  Steam  Navigation 
Co.,8N.  Y.  375;  Wallace  r.  Sanders,  42 
Ua.  486;  Nashville  etc.  R.Co.  r.  Jackson, 
6  Ueisk.  271;  D'Arc  r.  R.  Co.,  L.  U.  9 
Com.  r.  3J5;  Kiff  r.  R.  Co.,  .32  Kan.  263; 
Martin  v.  R.Co.,  L.  R.3  F.x.9;  Cohen  r.  R. 
Co.,  L.  R.2  Kx.  Div.  253,overrnling  Stew- 
•rtf.  R.Co.,  3  II.  AC.  135;  Canfleld  r.  R. 
Co.,93N.  Y.  5.32;  45  Am.  Rep.  2G8;  The 
Surrey,  26  Fed.  Rep.  791 ;  Ronanno  v.  The 
ItoBhenna  Bay,  36  Fed.  Rep.  697. 

4  Richa:''d8  v.  Hftnsen,  1  Fed.  Rep.  54 
(1880). 

8  The  Bristol,  6  Fed.  Rep.  638;  Wolf 
V.  The  Vanderland,  18  Fed.  Rep.  733. 
See  The  Nith,  36  Fed.  Rep.  86. 

6  The  Montana,  17  Fed.  Rep.  377. 


CII.  XII.] 


MODIFICATION  OF  LIABILITY, 


§162 


from  liability  for  "suffocation"  of  auinials,  will  not  ap- 
ply where  they  are  suffocated  through  the  ship  over- 
turning on  account  of  lack  of  proi)er  ballast/  or  on 
account  of  a  negligent  delay;-  from  "sweating"  will 
not  apply  to  a  sweating  arising  from  improper 
stowage.-'  An  exemptiim  fiH»m  liability  for  a  loss  aris- 
ing from  the  "viciousness"  of  cattle,  will  not  excuse 
a  defective  car.*  A  condition  that  animals  are  to  be 
"watered  and  fed  by  the  owner  and  at  his  risk,"  while 
on  the  cars,  refers  only  to  the  ordinary  sustenance  the 
animals  may  require  in  the  course  of  transportation; 
the  throwing  of  water  upon  the  cattle  for  the 
piir])ose  of  cooling  them,  and  which  in  hot  weather 
is  often  absolutely  essential  to  save  them  from 
dying  of  the  excessive  heat,  is  not  within  this 
exception;  this  <luty  still,  for  reasons  of  public 
convenience  devolving  ui)on  the  carrier."'  An  ex- 
emption from  "injury  to  any  article  of  freight 
during  the  course  of  transportation,  occasioned  by  the 
weather,"  will  not  include  negligence,  as  where  a  rail- 
road, in  trans])orting  fruit  in  cold  weather  used  a  com- 
mon box  car  when  it  should  have  used  a  refrigerator 
car."  A  contract  to  assume  the  risk  of  injiiry  "fi«om 
whatever  cause,"  will  not  include  an  injury  caused 
by  negligence.^  A  requirement  that  notice  must  be 
given  within  "live  days  after  stock  are  removed  from 
the  cars,"  does  not  apply  where  the  suit  is  for  not  de- 
livering the  property  at  all.^  A  condition  as  to  notice 
of  "any  loss  or  damage,"  does  not  apply  in  a  suit 


1  t.enw  V.  DadgeoD,  L.  R.  3  C.  P.  17. 

2  Sturgeon  v.  St.  I.onis  etc.  U.  Co.,  65 
Mo.  669;  Ball  r.  Wabash  K.  Co.,  83  Mo. 
674. 

3  Pntnrzo  v.  Compagnee  Francaise,  31 
Fed.  Hep.  611 ;  The  I'ortnense,  35  Fed. 
Kep.  670. 

4  Rhodes  f.  R.  Co.,  9  Bash.  688. 

1  III.  Cent.  U.  Co.  v.  Adams,  43  III.  474. 


6  Merchants'  Despatch  Co.  v.  Corn- 
forth,  3  Colo.  280. 

7  Wabash  i-tc.  R.  Co.  v.  JajTRcrman,  ll.'i 
III.  407;  Mynard  v.  R.  Co.,  71  N.  Y.  180; 
27  .\in.  Rep.  2k;  Smith  f.  R.  Co.,  29  Barb. 
1.S2;  24  N.  V.  222. 

8  Wilson  V.  Wabash  etc.  R.  Co.,  23  Mo. 
<App.)50. 

249 


IS 

.  -mm 


§104 


MODiriCATIOX  OF  LIAHILITY. 


[PAUT  II. 


a}jjainst  the  cnrrior  for  t ho  nmi-fUliirrif  of  the  goods,*  ass 
that  is  ncithor  a  "loss"  or  a  "dainafjc";  and  a  stipii- 
hition  as  to  the  time  of  inalving  claim  for  damaj^e  done 
in  transit  or  before  delivered,  does  not  apply  where  the 
owner  refuses  to  receive  the  goods.- 

Conditions  and  Exceptions  Peculiar  to  Carriage 

by  Water. 

There  are  certain  conditions  and  excejjtions  which 
are  found  generally  in  contracts  for  the  carriage  of 
goods  by  water,  as  for  exam]»le: 

§103.  "Call  at  Ports."  —  Liberty  to  "call  at 
any  port  or  ports,"  refers  to  ports  along  the  course  of 
the  voyage  specifu'd,''  ami  allows  thi'  ship  to  call  at 
such  a  port,  though  known  to  be  (luarantined.* 

J5  104.  "Damage."  —  Where  a  bill  of  lading 
contained  a  clausi':  "The  shipowner  is  not  to  be  liable 
for  any  <lamage  to  any  goods  which  is  cai)able  of  be- 
ing covered  by  insurance,"  it  was  held  that  "damage" 
would  include  damage  to  the  g(»o<ls  amounting  to  total 
loss  or  destruction,  but  not  to  a  loss  caused  by  abstrac- 
tion of  them.^'  It  refi'rs  fo  insurance  obtainable  of  the 
ordinary  insurance  comjjanies,  and  not  to  insurance 
which  might  possibly  bo  obtained  of  special  or  peculiar 
insurers."  And  such  a  clause  is  not  eipiivalent  to  a 
contract  that  the  carrier  shall  have  the  benefit  of  any 
insurance  on  the  goods,  and  does  not  interfere  with  the 
insurer's  right  to  subrogation.^     Where  a  bill  of  lading 


1  Porter  r.  Express  Co.,  4  .S.  C.    136; 
Wilson  V.  U.  Co.,  2H  Mo.  ( App.)  RO. 
■i  (iiilt  etc.  U.  Co.  t'.  Golding,  18  A.  &  K. 

u  u.  cus.  r.vi. 

■t  Ardiin  .S.  S.  Co.  r.  Tlu'banil,  ;«  Fed. 
Rep.  620. 

250 


4  The  Sidonian,.S4  Fed.  Rep.«05;  36  Id. 
634. 
s  Taylor  r.  Steam  Co.,  L.  K.  92  B.  646. 

6  The  Titania,  lit  Ked.  Rep.  101. 

7  The  Iladji,  IG  Fed.  Rep.  «61. 


^•^ 


CII.  XII.] 


MODIFICATION  OF  LIAIIILITY. 


§166 


recited  the  receipt  of  goods  in  good  order,  and  added, 
"not  accountable  for  weiglit«,  contents,  packing,  marks, 
and  damage,"  it  was  lidd  that  the  word  *''«laniage"  had 
reference  to  damage  of  the  goods  at  the  time  of  their 
receipt,  and  not  to  injuries  arising  subsequently  on  the 
voyage.* 

§165.  "Dangers  of  the  Roads."— In  bills  of 
lading  containing  an  exemption  from  "the  dangers  of 
the  seas,  roads  and  rivers,"  the  word  "roads"  is  con- 
strued to  mean  marine  roads.  It  might,  however,  be 
held  to  include  roads  on  land,  but  if  so  it  would  be  re- 
stricted to  tlmse  dangers  which  are  immediately  caused 
by  roads,  such  as  the  overturning  of  carriages  in  rough 
and  precij)itous  places.- 

8  IGG.  Dangers  of  the  Seas  and  Perils  of  Navi- 
gation. —  The  excej)tion  which  shipowners  were  ac- 
customed in  early  <lays  to  insert  in  their  contracts,  was 
neither  lengthy  nor  ob.scure,  consisting  simply  of  the 
words  "the  dangers  of  the  seas,""*  in  this  respect  dilTer- 
ing  greatly  from  the  mo<lern  bill  of  lading.'  Hut  in  con- 
se(iuence  of  a  ruling  made  by  the  Court  of  King's  Bench 
in  1795,'^  and  which  gave  great  alarm  to  carriers  by 
water,  a  more  sweei)iug  clause  canu»  into  use.  This 
clause  which,  according  to  the  text  books,  still  pre- 


1  The  Tommy,  IG  Fed.  Rep.  601. 

2  1)1'  Itotlischild  V.  Uoyal  Mail  Pnckct 
Co.,  7  Kx.  7.i4;  21  L.  J.  Kx.  278. 

3  Abbott  on  Shipping;,  rith  Am.  cmI.  4u1. 
The  exception  of  the  "(landers  of  tlio 
seas"  is  foiinil  in  bills  of  hulin^  its  early 
as  t!ie  rei^n  of  Charles  the  First.  Tick- 
eriiiK  e.  Uarkley,  1  Style,  l.Ti  (li;«7). 

■•  The  receipts  anil  liills  of  lailinjinow 
used  by  common  carriers  are  well  char- 
acterized by  Jnd^e  Kcdllcld  a- the /i«;)Ims 
ultra  of  the  intrenious  devices  of  the  com- 
mon currier  eraft  in  llndinK  some  mode 
Of  Oiicape  from  all  lU6t  i'vt>pousibility. 


»  Smith  f.  .'*hephenl,  Abbott  on  Ship- 
pinK>  *>th  Am.  ed.  HK4.  In  this  case  a  Hood 
huvin);  swept  away  a  part  of  a  bank  <>u 
which  vessels  were  accustomed  to  lie  in 
safety,  a  vessel  snnk,  one  of  its  musts  re- 
maining near  the  surface.  The  tlefeud- 
unt  upon  sailiiiK  into  the  harbor  stnick 
UKuinst  this  must,  which  not  Kiving 
away  forced  his  boat  upon  the  bank 
where  she  struck,  ami  in  coiiseiinence  of 
the  Hood  having  ehan!.'c<l  the  bank,  suuk. 
The  defeuUuut  was  held  liable. 


2.51 


y^ 


:5J 


;'J3 

■.'X 

:  'S' 

:  X 


>  I 


i ': 


§16ti 


'ODIFIOATION  C^  LIABILITY. 


[part  II. 


vails  in  EnglanJ,  is  in  these  words:  "The  at  of  God, 
the  King's  enemies,  lire  and  all  and  every  other  danger 
and  accident  of  the  seas,  rivers  and  navigation  of  what 
ever  nature  and  kind  soever  excepted."  The  phrases 
"perils  of  the  seas,"  "perils  of  the  river,"  "perils  of  th(! 
lake,"  "dangers  of  navigation,"  dangers  of  the  seas,"^ 
"dangers  of  the  river,"  "dangers  of  the  lake,"  "unavoid- 
able dangers  of  the  river,"-  "dangers  incident  to  the 
navigation  of  the  river,"''  "inevitable  accidents,"  and 
"unavoidiible  accidents,"^  are  convertible  terms  and 
will  b(»  considered  together.  They  are  such  perils, 
dangers  and  accidents  as  are  of  an  extraordinary  na- 
ture, and  aj'lse  from  irresistible  force  v.iiich  can  not 
be  guarded  against  by  the  ordinary  exertions  of  lui 
man  skill  and  i)rudence,^'  and  which  are  peculiiir  to  the 
<'lement«."  They  are  broa^ler  than  the  phrase  "act  of 
(lod,"  in  tliiit  they  inchnh'  human  agency.^ 

The  following  have  been  properly  he'd  to  be  within 
one  or  other  of  these  terms:  hidden  .)bstru('tions  in  a 
river,  such  as  logs,  rocks,  snags  and  the  like,  wlvich  pru- 


1  nnxter  v.  LclanJ,  Abb.  Adm.  348; 
.Jones  f.  ritchcr,  3  tit.  A  V.  135;  24  Am. 
Doc  TtJ6. 

2  The  ravorito,  2  Hiss.  .502. 

■t  The  Watlian,  13  Opin.  Atty.  Gen.  119. 

<  Kowlcr  V.  I  )!i. veil  port,  '..'1  Ti'X.  646; 
Marsh  f.  lilyth,  1  McCord,  300;  Marsh 
r.  Hlyth,  1  N.  &  Mc.  170. 

•^  The  Ueeside,  2  Sum.  In';  Itatxer  r. 
l.eland,  1  Abb.  Ailm.  44H;  ItcarHo  r. 
Hopes,  1  SpraRiie  33' ;  .^lory  on  Hail- 
inentH,  §.')12;  3  Kent  '/,1G;  The  Niagara  f. 
Cordes,  21  How.  7;  Tiickcrinan  v. 
Stephens  etc. Trans  Cn..  h2  S.  .1.  (Law) 
321;<;iimore  f.  Ccniiar,  1  .s.  &  M.  279; 
40  Am.  Dec.  flO;  'Inrn  v  f.  \i'iIson,  7 
Verg.  .S4i);  27  Am.  ,  )lm;.  .  l.l ;  (ii.rdon  r. 
lluchnnhn.S  Yer,;.  "' ;  .Iohnr'<on  c.  Friar, 
4  Yerg.  4H;  2G  A....  D.ic.  215;  Uillr.  Stur- 
geon, 28  Mo.  .■)2.'i;  Ty»en  r.  Moore,  nr. 
Harb.  442.  The  phrase  the  "  dangere  >)f 
the  seas"  has  been  dellxxedin  a  very  late 

252 


case  as  inclnding  all  nnn^oidable  acci- 
<lents  from  which  common  carriers  by 
the  general  law  are  not  excnsed  unlCHS 
they  arise  from  tlie  act  of  (iod.  Woods, 
.1.,  in  Dibble  v.  Morgan,  1  Woods  4Wi; 
and  see  Friend  v.  Woods,  fi  <  J  rait.  189; 
S2  Am.  Dec.  U'.*;  but  this  dellnition  is 
much  too  broad  and  not  the  law. 

«"This  phra«''  might  certainly  be 
construed  to  tni  ,in  dangers  which  arise 
on  the  sea,  anil  it  would  then  include 
every  hazard  and  danger  fro'.n  the  be- 
ginning to  the  end  of  the  voyage  of 
whatever  kind.  Hut  the  inclination  of 
the  courts  is  to  interpret  It  as  including 
only  dangers  which  anso  from  the 
acticii  of  the  elements,  and  those  Inci- 
dent to  that  cause,  rnth<>r  than  to  in- 
clude all  that  ariHc  upon  the  Eea,"  Mer- 
rill V.  Arey,  H  Ware  21.5. 

7  McArthur  v.  iears,  21  W«nd,  190. 


OH.  XII.]  MODIFICATION  OF  LIABILITY. 


§166 


(lence  could  neither  discover  nor  avoid;'  a  dense  foj;;- 
a  deflection  of  tlie  compass  from  accidental  or  unfore- 
seen causes;^  the  carwuiu^  of  a  vesjiol  after  her  arrival 
at  a  wharf,  by  which  water  enters  her  ])()rts;'  boister- 
ous weather,  adverse  winds  and  low  ti<l('s,  causinj;  de- 
lay;^ a  sudden  scjnall  or  jiust  of  winci;''  the  *'blowin}i;" 
of  a  vessel,^  or  the  opening  of  its  seams  caused  by 


1  Tarney  v.  Wilson,  7  YerR.  84o;  27 
Am.  Dec.  61') ;  The  Keoknk,  1  Uiss.W2; 
The  Favorite,  '2  Ili»s.  502;  Kedpath  v, 
Vanghan,  ^2  Itiirb.  4«0;  48  N.  Y.  «55;  Van 
Hern  V.  Taylor,  7  Kob.  201,  2  I.u  Ann. 
687;  41  Am.  Uec.  27U;  Iloyce  r.  Wi-lch,  5 
La.  Ann.fi2.^;  llostetter  c.  <iray,  U  Kcil. 
Kcp.  17'.';  Ilibornia  etc,  Ins.  Co.  v.  St. 
Louis  etc.  K.  Co.,  120  U.  S.  1C6;  7 
S.  C.  Uep.  550;  Kermison  c.  IJrent, 
12  Md.  it;  71  Am.  Dec,  M'.i.  The 
rule  which  imputes  larelessness  to  a 
eaptain  wiiose  liout  strikes  a  known 
rockorHhoal,  unless  driven  by  a  tern- 
pe.^t  (Abbott  on  s!  ipping,  iriH),  itt  only 
applicable  to  the  navigation  of  the 
ocean,  where  the  rocks  and  >al8  are 
marked  upon  niap.-<  and  may  t  avoided, 
and  does  not  apply  to  the  na\  i^ration  of 
the  western  rivera.  There  ea"li  ease 
puustbe  governed  by  its  ov/n  circum- 
Mtanoes,  and  be  tested  by  the  course 
usually  pursueil  by  skilful  pilots  in  such 
cases.  (Collier  f.  Valentine,  11  Mo.  2111); 
4't  Am.  Dec.  Nl. 

'.'  Itut  a  shipper  is  not  excused  by  the 
presence  of  a  deii.se  fog,  although  it  is  a 
danger  of  navigation,  if  the  loss  occur 
through  negligence  or  want  of  care— as 
while  running  at  a  high  rate  of  speed. 
The  liocket,  1  ISiss.  354; The  Portsmouth, 
'I  \Vall.t;H2. 

<  Itnt  it  must  he  clearly  shor,  n  that 
tho  otiieers  of  the  vessel  unilorstood  and 
('i'^charged  their  full  duty.  The  Rocket, 
I  lilss.  Mi. 

<  A  vessel  laden  with  goods  arrived  in 
port  and  whs  taken  into  a  dock  to  dis- 
charge her  cargo.  For  this  purpose  she 
was  fastened  by  tackle  on  the  one  side 
to  a  loaded  lighter  lying  outside  her, 
and  CD  the  other  to  a  bar.je  lying  be- 


tween her  and  the  wharf.  The  crew 
was  discharged  e.vcept  the  mate,  and 
lumpers  were  being  employed  in  un- 
loading her,  when  ihe  tackle  broke 
whereby  she  "as  fastened  to  the  lighter, 
and  in  cons^iiuencc  she  canted  over, 
water  got  into  her  ports,  and  the  goods 
still  on  board  were  damaged:  Held, 
that  this  was  a  loss  within  the  excep- 
tion in  the  bill  of  lading  of  "all  and 
every  the  ilangcrs  niivl  accidents  of  the 
seas  and  navigation."  I^uric  v.  Doug- 
las, 15  .M.  &  W.  74t;. 
.'  Lewis  r.  The  ."Success,  13  I^a.  Ann.  1, 
•1  .^^locum  v.  Kail-child,  19  Wend.  .H29;  7 
IIII1  2'.i2.  In  The  l.ady  I'ike,  2  liiss,  141, 
where  n  boat  having  three  loaded 
barges  in  tow  had  appioaelied  a  bridge 
ill  fair  wealhe;-  too  closely  to  back  or 
stop,  and  was  driven  aguin..«ta  ;iiei'  by  a 
sudden  and  unexpected  gii:  t  of  wind, 
the  owner  was  h'ld  net  liable.  Itut  In  a 
later  caae  (The  Mollie  .\Iohler,  2  Itiss. 
.lori  (l'*?!.,  imrinea  21  \V;iil. 'j.io  (1S74'I, 
whoe  !..'■•  same  thing  happened  to  a 
steamer,  the  weather  being  lem- 
postuoiis,  a  dilfereiit  conclusion  was 
reached  by  the  same  courl.  Il.lusof 
cotton,  stowed  on  a  ship's  lighter  in  ac- 
cordance with  the  usage  of  the  port,  slid 
otf  in  a  sinlden  gust  of  wind.  The  ship 
received  them  and  gave  a  clean  bill  of 
lading,  reciting  them  to  have  been  re- 
cciv«d  in  good  ord' .  and  condition,  all 
concerned  havi  .g  knowledge  of  the 
facts.  Jfeld,  ihat  the  ilamagu  was 
within  the  exception  in  the  bill  of  lading 
against  "perils  of  the  sea,"  The  City  ot 
Alextiniler,  2;i  Fed.  Uep.  826. 

7  Crosby  V.   lirinuell,  9  N.    Y.    Leg. 
Obsr.  281. 

253 


•n 


•si 


'A 


fii   ikt:UnL 


§166 


MODIFICATION  OF  LIAHILITY. 


[part  II. 


Straining  (ltirin<>-  a  storm;'  a  loss  occasionod  by  mistok- 
iuj;-  a  slioiv  lif^lit  on  a  dark  and  stormy  ni<;ht;-  strik- 
inj;aj;ainst  the  pierof  a  hridjic;'  dama<;o  by  "swoatinj;" 
of  tlio  t'arf;(>,  n(»t  arisinj;  from  no<;lij;('nt  stowaf;(','  and 
damage  by  other  carjio;''  daniajic  caused  (o  carjio  by 
the  shij)|>in<;'  of  water  in  a  storm;"  a  loss  by  a  jettison 
occasioned  by  a  "i)oril  of  the  sea;"^  or  a  collision/ 


I  Rich  r.  I.:iiiibcrt,  Vi  now.  .UT;  The 
I'olyiirsia,  ;«l  F'l'il.  Hep.  21(1;  hilt  SCO 
Itcar^r  c.  Itopiis,  1  Spratriic,  Xil. 

-  I'liu  Juniata  I'aton,  1  IliMS.  IS. 

.I  The  Mol•^in^'  Mail,  17  Kf<l.  I{>'p.  545. 

4  Clark  r.  Itaiiuvcll.  IJ  How.  '.'T-';  The 
Star  of  llojM',  17  Wall.  i;r>l. 

4  (looils  on  n  stc'iMicr  were  injunMl  in 
!i  (rale  hy  a  span-  propdlor,  properly 
.-towcil  and  lastciicil  in  tlif  same  coni- 
paitnicMt,  slaving  the  .-tianicr's  wide  and 
liUinir  ill  walcr,  —Ifeld,  that  tins  was  by 
a  "peril  of  the  sea,"  within  an  exception 
in  the  bill  of  ladiiiff.  The  Titania.l'J  Ked. 
Kep.  I'll. 

<"  A  vessel,  durin;;  a  loiifr  and  stormy 
voyap'.shippec!  larfie  imanlitiesof  water 
to  the  injury  of  a  lot  of  nitrate  ol  soda. 
The  vessel  was  well  duimaped  in  the 
li'-iial  manner,  and  there  wa<  noi'videnee 
ol  her  iiii-eauortliiiiess  when  she  started. 
Held,  ;i  loss  from  a  "perd  of  the  sea." 
The  Chasea,  •.'.:  Ted.  Itep.  15ti.  A 
vessel  is  not  liable  for  (he  loss  toa  carfro 
of  b.'irley  eaii-ed  by  the  (rernuiiatiou 
thereof,  resulting'  from  the  liamp  atmos- 
phere in  the  hidd.  eaiiM'd  in  turn  by  the 
s.M  water  whieli  liMked  into  the  vessel 
by  a  peril  of  the  seas.  The  Hltic  Jacket, 
'0  Iten.  24H. 

7  Hut  if  a  ji'tlison  of  a  car^ro  beronies 
nceessary  in  eonseinienee  of  any  fault  or 
breaeh  of  contract  by  the  niasterorown- 
ers,  <ir  of  the  unseaworthiness  of  the 
vessel,  the  j  ttison  is  attributable  to  that 
fanlt  or  breaeh  of  contract,  and  not  to 
the  sea  peril,  thoiiudi  tli.it  may  also  be 
jiresent  and  enter  inlii  the  case.  F.iiw- 
rence  c.  Mintnrn,  17  ll.nv.  Kiel;  Tln'  Ports- 
mouth, 2  |{li-s.  .W, '.I  Wall.  (J82;  The  Mil- 
waukee Kelle,  2  lliss.  1117 ;  |{ay  v.  The 
Milwaukee  Itelle,  18  A..i.  L.  T.  Kep.  :tll; 
Nenionrs  r.  VuiK'e,  ]'.>  liow.  i()2;  Crosby 
V.  Fitch,  li  Conn.  4in.  31  Am.  Dec.  745; 

254 


Hentley  v.  Hustard.  HI  U.Mon.  64.S,6H  Am. 
Oec.  fitil.  Where  the  vessel  ran  a^n-oiind 
in  sailing:  up  the  harbor  in  pursuit  of  a 
pilot  boat,  and  the  master  broke  open 
heavy  ea-ks  of  lic|iior  to  li^rliten  the  ve>-- 
sel,  in-te.id  of  throw  ill);  llieni  overboard, 
it  Wiis  held  that  the  lo>s  iiii).'lit  under  the 
circuiiisiauces  be  regarded  as  a  "peril  of 
the  sea."  Van  .'Syckel  r.  The  Kw  inj;, 
Crablie,  405.  There  is  nothinir  unreas<in- 
able  iiiir  ai-'aiiist  public  pilicy  in  provid- 
iiiff,  in  a  bill  of  lading  for  liv<!  beef  cattle 
on  deck,  that,  if  necessary,  tliey  may  bi' 
jettisoned  forthe  safety  oi  the  ship,  with 
out  the  shi|i-ov.  ner  incuri'inj;  air-  liabd 
ity  llierefor.  The  Kuriipie,  5  lltifrlie^, 
C.  Ct.  275. 

•*  The  weight  of  anthonty  makes  n  col. 
lision  a  dan».'ei  of  naviication.  biu  failini; 
to  make  any  distinction  in  tlie  <-ases,  re- 
mains inconcliiwive.  The  St.  Louis,  Cin- 
cinnati Hiid  Chicago,  three  river  boats, 
start  from  ditferent  points  .nt  the  same 
time,  carrying  boxes  of  tobacco,  the 
property  of  .\.  The  bills  of  Itiding  in 
each  case  are  alike,  excepting  "the 
dangers  of  tlin  river  ami  iiavigution." 
in  each  case  the  property  is  not  deliv- 
ered and  A  institutcB  three  separate 
snitH  against  the  respective  boats  The 
.St.  Louis  anowers,  Nettinx  up  thu  e.\- 
ceplion  in  the  bill  of  lading,  i.nd  alleg- 
ing that  at  a  liend  in  the  river  during  a 
heavy  fog  she  collided  with  the  Cincin 
nati  and  waH  Slink,  neither  boat  being 
in  fanlt  and  everything  having  been 
done  by  the  olflcers  on  each  boat  to  pre- 
vent the  collision.  I'hi.';  allegation  be 
ing  proved  is  held  i  Hudlciont  answer  to 
the  action.  I'lainted  r.  I'.o.xton  etc.  Nav- 
igation Co.,  27  Me.  132;  The  New  .ler- 
eey  v.  olcott,  444;  Marwh  v.  Hlythe, 
1  McCord,  ,S(i(i;  Sf-e  (Jbartertd  Mer. 
]tk.  V.  Netheriand   .Steam  Nav.  Co.,  I>. 


en.  XII.] 


MODIFICATION  OF  LIABILITY. 


§  100 


No  losses,  however  aceideutal,  can  be  brought 
within  the  exceptions,  so  as  to  excuse  the  carrier, 
which  might  have  been  avoided  by  the  exercise  of  dis- 


11.  9  Q.  IJ.  I>iv.  118.  In  the  pro- 
ceeding aKiiiiisl  The  Chicugo  the  bill  of 
lading  with  ita  conditions  are  produced, 
and  the  Idhs  of  the  property  by  a  col- 
lision with  The  Cincinnati  .-hown.  The 
evidence  shows  that  the  collision  was 
caused  by  the  negligeuco  of  the  defcnd- 
ant'e  ollicers  in  managing  the  boat,  and 
conld  have  been  avoided  by  the  exercise 
of  due  c'are.  A  verdict  for  the  plaintiff, 
A,  is  held  correct.  I.loyd  v.  (ieneinl 
Iron  .Screw  etc.  Co.,  .S  II  &  C.',!S1 ;  10  .Jur. 
(N.S.)fiBl;  3;i  L.  .1.  Kx.  2t>9;  I'i  W.  U. 
mi;  10  L.  T.  (N.  S.)  58f>;  TheCityof  Nor- 
wich, 3  Ben.  575;  Grill  v.  (ieueral  Iron 
Kcrew  etc.  Co.,  L.  U.  1.  C.  V.  «00;  12  Jur. 
{N.,S.)727;;tJ  L.J.  C,  1'.321 ;  14  W.U.  H'M; 
5  L.  R.  8  C.  I'.  47G;  37  L.  J.  C.  I'.  205; 
Ki  W.  It.  700;  18  I  T.  (N.  .<. )  4«5. 
In  the  proceeding  against  The  Cinciu 
nali  the  preponderance  of  testimony 
otablitihes  that  the  loss  arotje  through 
(he  boat  being  run  down  by  the  ncgU- 
(.'cnce  of  the  ollicers  of  The  Chicago,  but 
without  the  fault  of  the  defendant.  The 
bill  of  lading  18  in  form  as  in  he  oth-'r 
(  Mses.  The  defendant  has  J  idgmcn.;. 
Van  Hern  t'.  Taylor,  7  Uob.  2;/l ;  41  Am. 
Dec.  27!t'2  I.a.  Ann.  5s7;  Whitcsides  r. 
Thurlkill,  12  ri.  &M.599;  51  Am.  Dec.  12h; 
Hays  V.  Kennedy,  41  I'a.  .St.  378;  8(i 
Am.  Dec.  H27;  Simpson  r.  Hand,  6 
Whart.  31);  ;»;  Am.  Dec.  231.  Inlhenrst 
and  Becond  of  these  cases  the  concln- 
mons  reached  are  dt  arly  correct— be- 
caueio  the  danger  of  accidental  (collision 
is  known  to  all  who  go  to  sea  in  Mhips 
and  because  of  the  oft-repeated  princi- 
ple that  the  exceptions  in  a  bill  of  lad- 
ing can  lot  include  negligent  acts.  j>u' 
the  third  casa,  though  supported  by  all 
the  American  authorities,  can  hardly 
stand.  Not  only  is  it  difficult  to  bring 
it  within  tlio  deQpition  of  the  phrase 
used,  but  tbj  reason  for  the  e.xception 
is  altogether  absent.  The  e.\ception 
was  allowed  to  a  carrier  to  protect  him 
from  the  consecjnence  of  a  J'sa.ster  oc- 
curring in  spitu  of  his  vigilance,  and 
Which  woald  sweep  away  at  one  time 


bis  own  as  well  as  hlg  employer's  prop- 
erty.   Itut  for  the  negligent  handling  of 
the  vessel  causing  the  injury,  the  in- 
jured carrier    himself  has  his  remedy 
over.    The  .\inerican  cases  contain  no 
mention  of  this  distinction,  though  in  a 
case  decided  in  Kiigland  at  the  begin- 
ning of  this  century  where  a  loss  had 
beiMi  caused  by  an  unavoidable  collision, 
and  which  seems  to  have  escaped  the 
notice  of  succeeding  judges.  Lord  Ken- 
yon  said  "that  if  the  defendants  had 
been  guilty  of  any  netrligencc  and  it 
could  have  been  proved   that  the  acci- 
dent could  have  been  pnnented,  they 
W')uld  certainly  have  been  liable,  but 
they  were  exempt  by  the  coiuliliou  of 
the  bill  of  lading  from  misfortunes  hap- 
pening doriiiK  the  voyage  which  human 
prudence   could    not    guard    against— 
against   accidents    haiipeiiing   without 
fault  in  either  party."     Knller  v.  Kisher, 
3    K^p.   6".    Altliou,"h    L,ord    Kenyon's 
judgment   is  very  obscurely  reported, 
it    must    be    taken   for    granted    that 
the    parties  whom  he    was  of  opinion 
must  be  free  from  fault  were  the  mas 
ters  of  the  vessels  which  collided.    Inn 
Missouri   case.  A.,  a  common  carrier, 
which   owned    a   lino    of  barges,  con- 
iracted  with  IJ.  to  convey  certain  goijds 
on  its  barges  safi.ly  from  C.  to  D.,  the 
dangers  of  navigadon  and  collision  cx- 
-;epted;   and  while  A.  was  getting  to- 
gether IlS  barges  in  the  harbor  of  C., 
preparatory  to  starting  tbain  to  !>.,  the 
barge   in   which  I'.'s  goods    had  been 
placed  was  brought  into  collision  with 
another  of  j\.'  ,  barges,  through  the  mu- 
tual carele;^.sneEs  ut  two  tug-boats  be- 
'ongingioK.,  but  which   w;re  in  A 's 
cnip'.viy,  and  at  the  time  cgaged  in  tow- 
ing said  barges,  and   r,.'s  goods  were 
damaged.    The  Court  held,  that  the  col- 
lision was  not  an  excepted  peril,  and 
that  A.  was  liable  to  1(.  icr  the  damages 
which  he  had  sustained.    Sun  Mut.  Ins. 
Co.  v.  Mississippi  Valley  Transportation 
Co.,  14  Fed.  Rep.  fi99;   s.  c.  17  Fed.  919. 

2D5 


9; 

•n 


'X 


§166 


MODIFICATION  OF  LIABILITY, 


[part  II. 


creti'on  and  foresight.*  They  release  the  carrier  from 
losses  caused  by  hidden  obstructions  newly  placed  in 
the  river,  such  as  human  foresight  could  not  discover 
and  avoid;  but  if  he  knows  of  a  new  obstruction  before 
an  injury  is  caused  by  it,  he  must  use  increased  cau- 
tion; and  if  he  could  by  any  means  have  removed  it, 
he  will  be  chargeable.^ 

Soj  if  the  goods  bo  badly  stowed  or  put  on  deck  with- 
out the  owner's  consent,  the  exceptions  will  not  save 
the  carrier.^ 

Where  goods  are  damaged  by  water  arising  from  an 
excepted  peril,  it  is  the  duty  of  the  carrier  to  exercise 
ordinary  care  ar  1  diligence  to  prevent  the  conse- 
quences of  the  injury,  and  where  it  would  be  of  advant- 


1  Williams  v.  Branson,  1  Mnrpli.  417 
4  Am.  Dec.  5G2;  Spencer  f.  l)a>rpett,  2 
Vt.  92;  Jones  v.  ritclier,  3  St.  &  1'.  1.%; 
24  Am.  Dec.  716;  F^'iichilil  v  t^laoum, 
19  Wena.  329;  Dibble  v.  !Moi>.-.uu,  1 
Woods,  408;  The  Casco,  Daveis,  284; 
The  Hebeeca.  1  Ware,  1K8  ;  The  Mou- 
tana,  17  Fid.  Kep.  .H";  22  lil.  715; 
The  Hrantford  City,  29  Fed.  Uep.  .H73; 
lliowninR  V.  The  St.  Patnek,  14  Thlla. 
591!;  Liverpool  Steam  Xav.  ("o.  r.  I'lioeuix 
Ills.  Co.,  9  S.  C.  Kep.  409;  Costijian  v. 
Michael  Trans.  Co.,  SA  Jlo.  App.  2i;7; 
■'^teamhoat  Co.  r.  r.a-<in.  Harp.  2t',2;  Hays 
r.  Kennedy,  41  Pa.  St.  .STh;  SO  Am.  l>cc. 
G27;  The  Ocean  Wave,  3  IJiss.  317 ;  White- 
sides  r.  Hussell,  8  W.  .S  S.  44  ;  i:ichi>rds  c. 
Hansen,  1  Fed.Uei>  54  ;  The  I5er>.'ense.\cn, 
3(i  Fed.  Uep.  700;  Chi^te^son  c.  American 
K.\.  Co.,  15  Minn.  270,  2  Am.  Uep-  122. 
liunnin);  against  a  cape  or  continent  can 
not  be  termeil  an  "accident  of  the  sea," 
which  proper  foresight  anil  skill  in  the 
commardint;  ollicer  niiirht  have  avoided. 
Uazin  v.  Steamship  Co.,  3  Wall.  Jr.  229 
A  loss  occasioned  by  the  master  of  a 
steamer  attempting  to  e.iter  a  port  in  a 
lU'Use  fojj,lie  not  beinff  compelled  by  any 
cxifrency  to  ma..e  the  attempt,  will  not 
be  attributed  to  "perils  of  the  sea."  The 
Costa  Uica,  3  Sawy.  538. 


2  Gordon  v.  Rnchannnn,  5  Yerg.  71; 
Johnson  r.  Friar,  4  I<1.  48. 

3  The  Kebecea,  1  Ware,  188;  The  Casco, 
Daveis,  184;  The  Newark,  1  Hlatch.  203. 
A  bill  of  lading  for  a  cask  of  wine  re- 
ceipted for  it  "in  ^ood  order  and  condi- 
tion." and  excepted  "the  dangers  of  the 
seas."  On  arrival  in  port,  and  before 
i;eing  moved  from  its  place  in  the  vessel, 
it  wiis  found  to  be  leakmg,  with  one  of 
its  heads  crushed  in,  and  a  large  propor- 
tion of  the  wine  bad  leakerl  out.  In  a 
STiit  in  rem,  in  admiralty,  against  the  ves- 
sel, to  recover  for  the  value  of  the  lost 
wine.— //fW:  1.  Thatthe  libellant  must 
!-how  negligence  in  the  handling  or  stow- 
age of  the  cask.  2.  That  the  condition  of 
the  cask  on  arrival  was  prima  facie  evi- 
dence of  such  negligence.  3.  That  the 
vessel  must  then  show  that  the  damage 
was  not  caused  by  negligence  on  the 
part  of  the  vessel.  4.  That  general  evi- 
dence as  to  proper  stowagt;  and  dun- 
nage, in  iilace,  did  not  shoxr  tiiat  the 
head  was  not  cnished  in,  in  handling, 
after  the  vessel  took  charge  of  it,  and 
that  such  handling  was  part  of  the  stow- 
age. The  ISlack  Hawk,  9  lien.  207. 
Lawrence  v.  Rlinturn,  17  How.  100; 
A^tl•up  c.  Lewy.  19  Fed.  Uep.  S.'ii!;  Mar.< 
f.  The  Britannia,  34  Fed.  Kep.  906. 


256 


:il.  XII.] 


MODI1<?OATION  OF  LIABILITY, 


§160 


age,  he  sboiild  open  the  package  aud  dry  the  goods; 
aud  if  such  precautionary  uu-asures  are  not  taken,  the 
carrier  will  be  liable  for  the  loss.' 

Subject  to  these  conditions,  the  following  have  been 
held  not  *d  be  within  these  exceptions:  A  dampness  or 
sweating  of  the  hold  of  a  vessel  and  shown  to  be  the 
ordinal*}'  accompaniment  of  a  vo.\age  from  southern  t(» 
northern  ports,  and  to  result  n()t  from  tempestuous 
weather  but  from  occult  atm()s])heric  causes;-  the 
mere  rolling  of  a  vessel  in  a  cross  sea,  an  ordinary  in- 
cident of  every  voyage;''  a  mere  leak  not  shown  to  hav»* 
been  caused  bj'  the  action  of  the  elements;^  damag*' 
laused  by  rats'"  or  other  v<'rmin;"  theft  or  i«oblM'ry  un- 
less ])iracy  on  the  high  seas;^  theft  or  robbery  ccnu- 


1  Choiitoaux  I-.  Lci'ch,  IS  I'a.  St.  224; 
n"  Am.  I'ec.  IV)2;  Uiiil  r.  Croiiiwcll,  1  >lo. 
HI;  1.)  Am.  lice.  470;  Till'  Nitli,  :«!  Ft'd. 
Kcp.  Sfi;  Stoainbojit  Co.  i:  Hiisiii,  llarp. 
2i;'i;  I'lii'lan  v.  Thu  Alvarailo,  2  Am.  L.  .J. 
XVI;  Wt'st  I'.  The  llerlin,  .i  Iowa.  ri,t2. 

2  ISaxter  c.  Leland,  Abb.  Ailm.  US 
•!  'I'lie  UecsiUe,  2  Sum.  M'. 

I  The  Kmnia  Johiisun,  1  Spi'agac,  52V; 
The  (Jompta,  4  Snwy.  3T5. 

6  The  Isabella,  8  lien.  I.i9;  Kay  i: 
Wheeler,  3t;  L.  ,J.  C.  T.  1«0,  1..  K.  2  C.  C. 
.^02,  15  W.  U.  495,  16  h.  T.  (N.  S.)G6; 
lyaveroni  r.  Drnry,  22  L.  J.  K.\.  3,  H  l.x. 
K',6,  16  Jar.  10->4.  Ia>s»  or  duiiiu"'c 
by  rats  is  not  an  act  of  (iod,  nor  a  dan- 
ger or  accident  of  th«  sea  ;  the  fact  of 
damage  by  rats  in  sulllciunt  evidence 
that  sutlicient  care  and  Hkill  were  not 
exercised  to  rid  the  vee.sel  of  rats.  The 
Carlotta,  9  Ben.  1 ;  I'andorf  v.  Ham- 
ilton, I,.  U.  17;  q.  U.  I)iv.  G70  (IHHII). 
In  thid  caHe  the  fl'.Mion  was  broiiKht  by 
shippers  of  rice  for  liuiiiaKCM  done  to  it, 
in  the  course  of  carrKi^e  in  the  dcftiid- 
anls'  ship.  The  rice  was  Mhipijcd  under 
bills  of  lailinR  which  conl'tiiii'd  an  ex- 
ception of  'dangers  and  accldenlL^  of  the 
seas.'  During  the  voyage,  rata  gnawed 
through  a  mcUl  pipe  connected  with 
the  bath-room,  and  the  sea-water,  es- 
caping from  the  pipe,  damaged  th»»  rice. 

18 


The  loss  was  heh!  not  within  the  excep- 
tion. Where  the  master  of  a  vessel  re- 
ceived nkins  to  be  carried  from  New  <-)r- 
leans  to  New  York,  there  to  be  deliv- 
ered in  good  order.  Hi  "(langora  of  the 
seas"  excepted,  and  ll\e  skin."  were  In- 
jured by  rats,  the  court  ref'ised  to  ad- 
mit evidence  to  show  that  according  to 
mercantile  usage  and  iiiiderHlanding 
injuries  by  rals  were  considered  and 
treated  as  dangers  of  the  sea.  Ayinar 
V.  A.-tor.  6Cow.  2Ci>;  See  (iarrigues  r. 
Coxc,  1  Hi'iney,  5y2. 

0  Cockroiiches  ale  otFand  clefaced  the 
i>aper  labels  pasted  on  the  outside 
coveringof  chests  of  tea,  which  injury 
embarrassed  the  assortnient  and  de- 
livery of  the  goods  to  the  consignees 
and  depreciated  their  market  value. 
JleM,  that  the  damagen  were  not  the  re- 
sult of  a  "peril  of  the  sea"  or  of  any  of 
the  "dangers  or  accidents  of  naviga- 
tion," within  iin  exception  to  that  ef- 
fect in  a  bill  of  lading  but  ^vere  lane 
ages  for  which  the  ship  and  Us  owner* 
were  liable  as  insurerLi  of  tin  safe  con- 
veyance of  the  cargo.  The  .Miletus,  6 
lilatchf.  :i35. 

7  King  f.  Shepherd,  3  story  H49;  Ten- 
terdcn  on  Shipping,  pt.  3,  o.  8,5  0,  p. 
'244;  Abbott  ou  Shipping,  pt.  3,  e.  4,  §  i, 
p.  2.52. 

257 


•J-' 


§166 


MODIFICATION  OF  LIABILITY. 


[part  II. 


uiittod  by  persons  coming  on  board  the  ship  by  con- 
Hf'ut  of  tlic  master  when  siie  is  not  on  the  high  seas, 
or  by  persons  on  board;'  di'predations  on  the  ship's 
stores  or  cargo  committed  by  her  passengers  or  crew 
in  consc  qjuence  of  a  sliort  allowance  made  necessary 
by  the  lengtli  of  tlie  voyage;"  the  ban'atrons  act  of  lln' 
crew  in  boring  holes  in  the  ship  for  the  purpose  of 
scuttling  her;"*  embezzlement;'  plundering  of  the  shij* 
by  a  cusftom  house  oni<<'r  while  in  charge  of  it;''  tlw 
unskillfulness  of  the  jjllot;"  the  desertion  or  insubor- 
dination ^^f  seamen;"  an  accidental  tire;'^  the  explosion 
of  a  boiler  of  a  steamship;"  low  water  in  a  river;'"  the 


1  King  r.  Slicpliprd,  3  Story  :^I0. 

a  Tlic*;ol(l  lliiiitcT,  llliitchf.  A  M.  800. 

3  The  ClmHca,   I..   K.  4   Atlm.  446,  23  L. 
T.  8;w,  4(  I..  J.  Ailm.  17. 

4  KiiiK  f.  Slifplicnl.  3  Story  .^49. 

«  Scliii-ffclin   r.   lliirvfY,    Anlli.    6C,.   (> 
Joliii».  170;.'!  Am.  Uvr.  2m. 

a  llnrvyi.  I'lke,  N.  C.  Torni  Hop.  H2;  7 
Am.  I»ec.  f.'.w. 

7  Till)  l':iliel,.'>1lcn.  l.M. 

«  liilmore  r.  Carman,  1  S.  ft  M.270;  40 
Am.  Dec.  W.  Sh»rkcy,  C.  .1. :  "II  is  not  ■ 
ilniiKer  winch  proceeds  from  or  Ik  pecu- 
liar tuihe  river.  IlariscH  (roiii  the  iiionim 
uacd  III  propelliiiK  the  boal.nnd  nut 
from  any  ub<>t:iclu  or  iiiipeilinient  in  tho 
river.  'I'he  boat  itHulf  in  the  deponilory 
of  the  aKeiit  which  prodiiceK  itx  own 
dcHlriictiou.  If  the  owner  <'h(/t>Hen  to 
eiiipliiN  this  MKeiit  he  ran  not  with  pro- 
priety Hiiy  that  it  iM  prodiiciive  of  a  dan- 
Ker  incident  to  the  uaviK-Htion  ot  the 
river.  Thte  is  a  dnnncr  prixliiced  by 
human  UKency  ;  it  may  be  comiteractPd 
by  human  saKaciiy  and  prndence."  See 
sIho  GarriKiin  r.  MeiiiphlM  Ins.  Co.,  Ill 
JloH.  .ti;';  Merrill  r.  Arey.  .1  *Vnre  215, 
(!oJi  r.  I'eterson,  111  Ala,  r.(*;  fn'riii  Mu- 
tual Int.  ('o.  I'.  IndlanapoliK  etc.  It. 
Co.,  1  DiKnuy  4H0.  It  in  held  in  AIn 
bo.na  thai  n  ruir:er  may  show  by 
parol  ihat  an  exception  <i(  "ilnageiK  ot 
the  river"  as  emiiodieil  in  a  lull  of  lad- 
luR  by  iisHKo  and  custom  incliidefi  dan- 
gen  ot  ilr».     Ilibler  i     McCarlney,  31 

258 


Alii.  TiUl ;  Sampgon  v.  Gazzam,  <>  Port.  Va; 
Kzell  c.  .Miller,  Itl.  307;  Kzzell  r.  Kuk 
llsh,  /(/.  311  ;  .McClure  r.  Cox,  32  Ala.  017; 
.lones  r.  I'ltcher,  3  St.  &  C.  \3i.  Hut 
thiH  i8  contrary  to  tho  wcigbt  of  au- 
thority. 

«  The  Mohawk,  8  Wall.  15.S.  Kor 
perils  urisinK  on  tho  Hca  are  not  neces- 
sarily  perils  ariHlng  from  the  Hua.  The 
Kdwin,  1  .SpraKiie  477;  Itulkley  t:  Nauni 
kenK  Hteam  Cotton  Co.,  1  Cliff,  ^n 
24  How.  ;iH(i  ( IHf.ii),  ron<ro,  Adania  Kx 
press  Co.  r.  Keiulrich,3n  Ind.  )B0. 

K'  Danger  of  naviKation  does  not  mean 
want  of  iiaviKation.  Cowley  r.  David- 
son, i;<  Minn.  '.12.  "The  obliKation  ot 
this  common  carrier  under  this  bill  ot 
ladinK  was  to  deliver  the  goods  at 
Shreveport  without  unnecessary  delay, 
in  K<>od  order  and  condition,  unto  the 
ronsiKiices  or  assigns,  they  paying  the 
sjiecilled  freight  and  no  more,  the  dan- 
gers of  the  river  and  lire  only  I'xcepted 
Low  water  iH  not  to  be  classed  aixiouK 
the  dangers  ot  the  river  wL.>ich  absolve 
the  ca.  ;'ier  from  this  conventional  ohil- 
gatiiin."  llatchetl  c.  The  (Compromise, 
12  I.H.  Ann.  Tn.t;  ItTadwcll  r.  Hutler,  1 
Newb.  171,  c,  McLean  2<.t<i;  Mahou  f.  The 
Olive  linii.c!i,  IH  l.,a.  Ann.  lu7;  I'ontrn, 
Transporiutlon  Co.  e.  Downer,  11  Wall 
I'i^  Ai,  exception  at  "daniti're  of  the 
river"  will  not  cover  the  case  ot  a  l(w« 
ot  goods  by  tiro  in  a  warehouse  wh<  r<< 
they  had  been  deposited  by  tue  carrier 


on.  XII.] 


MODIFICATION  OF  LIABILITY. 


§167 


shifting  of  a  buoy;*  au  injury  to  cargo  occasioned  by 
contact  with  otkei*  cargo;-  or  by  want  of  ventilation;^ 
or  by  coal  dust;'  or  a  failure  to  proceed  on  the  voyage 
ou  account  of  the  outbreak  of  war/'  or  the  seizure  of 
the  goods  and  ship  by  officers  of  the  law." 

§  1G7.  **DeIlcieney  in  Quantity." — A  stipulation 
in  a  bill  of  lading  that  "any  damage  or  deficiency  in 
quantity,  the  consignee  wil'  deduct  from  the  balance 
of  freight  due  the  carrier,"  does  not  import  a  guaranty 
that  the  carrier  has  received  the  whole  quantity  of 
goods  specified  therein,  nor  an  agreement  to  pay  for 
any  portion  which  may  be  deficient.  The  words  "de- 
ficiency in  quantity"  relate  to  the  property  shipped, 
and  not  to  the  amount  as  contained  in  the  bill  of  lad- 
ing." But  the  contrary  was  held  where  the  language 
of  the  bill  of  lading  was  that  "all  the  deficiency  in  the 
cargo  shall  be  paid  for  by  the  carrier,  and  deducted 
from  the  freight,  and  any  excess  in  the  cargo  shall  be 
paid  for  to  the  caiTier  by  the  consignei'."''  Tn  Illinois, 
where  a  bill  of  lading  contained  this  clause,  "all  the 
deficiency  in  cargo  to  be  paid  for  by  the  carrier  and 
deducted  from  the  freight,  and  any  excess  in  the  cargo 
to  be  paid  for  to  the  carrier  by  the  consignee,"  it  was 
held,  that  money  paid  the  carrier  by  the  c«)nsignee  on 


on  acconnt  of  low  water  in  the  river 
which  pri! vented  his  vessel  from  proso- 
eiitniK  the  \oyago  to  the  place  of  .Icsti- 
oulion.    Cox  V.  Peterson,  30  Ala.  60S, . 

1  KecTcs  f.  Waterman,  2  Speer.s,  197 

2  Tlie  Antoinette  C,  lien.  Bfii ;  see  I)u(.'- 
gctt  f.  .Shaw,  .S  Mo.  2<H ;  The  Freedom,  I,. 
K.  3  P.  C.  ini.  '1  L.  T.  ( N.  S.)  452. 

3  The  Freedom,  L.  U.  3  P.  C.  594,  24  L. 
T.  (N.  S.)  452. 

4  Filberts  in  hnKx  were  stowed  ngaiMst 
a  nioval)le  bulk -head  t-epuraling  the 
roMipartnient  from  the  coal  biiukara, 
tbt'OQgh  which  an  extraordinary  amount 
of  coal  dust  penetrated,  and  injured  the 


nuts.  The  bnlk-beud  was  covered  by 
Chinese  matting,  which  is  often  nsed 
for  such  purposes ;  bat  canvas  is  eqnally 
used,  and  is  better,  becanso  tighter. 
neld,  thnt  coal  dust  is  not  a  peril  of  the 
sea  and  the  ship  is  liable.  Uills  r.  Mat- 
chill,  36  Fed.  Hep.  702. 

5  The  Patria,  I^  K.  3  Adm.  436,  24  L.  T. 
(N.  S.)  849. 

0  Spence  v.  Chadwick,  10  Q.  B.  617,  U 
Jur.  b'i. 

7  Meyer  v.  Peck,  28  N.  Y.  690;  Abbe  v, 
Eaton,  51  N.  Y.  410. 

8  Meri'ick  I'.  Certain  Ilushelsot  Wheatf 
3  Fed.  Kep.  340. 

259 


S 

•  ••« 


..4 


§170 


MODIFICATION  OF  LIABILITY. 


[part  II. 


accouut  of  such  cxceHs,  bclougetl  to  the  shipper,  and 
not  to  the  carrier.'  So,  where  a  bill  of  lading  stipu- 
lated that  tlie  full  quantity  of  grain  mentioned  therein 
should  be  delivered,  any  deficiency  to  be  paid  for  by 
the  carri(T,  "and  any  excess  to  be  paid  for  to  the  car- 
rier by  the  consignee,"  it  was  held  that  the  excess  did 
not  belong  to  the  carrier,  but  that  the  consignee  was 
bound  to  jKiy  freight  on  it.* 

§  1G8.  »'  Extraordinary  Marine  Kisk."— Where  a 
vessel  struck  upon  the  lluke  of  a  sunken  anchor  in  the 
harbor,  and  was  sunk,  it  was  held  that  the  risk  which 
the  vessel  thus  incurred  was  not  an  "extraordinarv 
marine  risk"  within  the  meaning  of  the  charter-party. 
It  was  an  ordinary  risk,  which  every  vessel  that  en- 
ters a  harbor  runs,  Mn<l  which  every  marine  policy 
covers.'' 

§  100.  *' Fire."— In  a  bill  of  lading  of  a  steamboat 
the  word  "fire"  means  any  fire,  and  is  not  restricted 
to  fire  originating  from  the  boat's  furnace.^  It  in- 
cludes, as  a  rule,  a  loss  by  fire  while  the  goods  are  on 
the  wharf  awaiting  shipment,  and  while  on  the  wharf 
after  unloading,  as  well  as  while  on  the  vessel."' 
An  exemption  from  liability  from  fire  on  "lakes 
or  rivers,"  will  not  absolve  the  carrier,  when  part  of 
the  carriage  is  by  land  and  the  goods  are  burned  on  a 
railroa<l,  or  in  a  railroad  dejxit." 

§1/0.  "Good  Order  and  Condition."— The  re- 
cital in  a  bill  of  la<ling  that  the  goods  were  received  in 
"good  order  and  condition,"  refers  giMierally  to  their 


1  Wallnror.  l.onn,H  III.   A  pp.  Mi. 

2  Ford r.  Ueii(l,.S4  Hun.  146. 

3  Leary  v.  Unitcil  Slates,  14  Wall.  0.07. 

4  Swindler  v.  Hilliard,  2  Kicli.  (S.  C.) 
J16;  see  Colton  c.  I{.  Co.,  67  I'a.  St.  211. 

*  Scott  f.  Halt.  etc.  Sinamboat  Co.,  19 

260 


Fed.  Kep.  ftO;  The  Kgypt,  25  Ked.  Uep. 
S'iO;  see  St.  Louis  etc.  U.  Co.  v.  Hone,  U 
S.  W.  Kep.  U.58(Ark.) 

fl  Baxter  v.  Wheeler,  4U  N.  II.  9 ;  Little 
Uock  etc.  K.  Co.  V.  Talbot,  3!)  Ark.  523. 


CII.  Xir.]  MODIFICATION  OF  LIABILITY. 


§170 


external  appoaniuce;  the  tarrici"  in  not  conchidod  by 
his  statement,  but  may  explain  or  contradiet  it  by 
parol  evidence.*  The  presunii)ti()n,  howewr,  is  that 
not  only  the  package,  but  the  contents  were  in  jjckmI 
order  when  received,  and  the  burden  of  ])ro()f  is  on 
him  to  show  that  the  facts  are  not  as  his  receipt  has 
admitted,-  which  proof  must  be  of  a  most  satisfactory 
character.-'  The  scent  of  camphor  in  teas  so  strong 
as  to  be  readily  perceived  in  handling  the  boxes,  is  an 
external  mark  of  their  condition,  and  therefore,  the  re- 


1  Brndstrcot  t:  Iloian,  2  lUiUclit.  llfi; 
The  Nilh,.«!  Val.  Uop.  W);  The  Califor- 
nia, 2  Sawy.  12;  Keith  r.  Aincndti,!  IJuuh, 
455;  IJarrolt  V.  l{oKers,7  Mass.  2'.»7;6  Am. 
Dec.  43;  The  MiSHonrI  r.  Webb,  9  Mo. 
193;  Ticniey  v.  U.  Co.,  10  Hun,  .Miii; 
Ari'her  v.  The  Adriatic,  9  Cent.  K.  J.  201. 
Gaiicho  f.  Storer,  14  l.u.  Ann.  411 ;  Uich- 
ardsi'.  l)oe,100MasH..'i24;Tlie<)rillaniino, 
1  Sawy.  ITii;  The  Uluc.k  Warrior,  1  .Mc- 
All,  IHl;  Uissell  f.  rrice,  Ifi  111.  40n; 
SelK  r  V.  The  I'ncillc,  1  Greg.  409 ;  Arend  r. 
Liverpool  S.  S.  Co.,  0  I.ans.  4.">1 ;  f>4  Harb. 
lls'arMon  r.  Harris,  4  Ci.  (ireene,  Slti; 
Mitelii':i  V.  United  ."Stales  Kxpress  Co., 
4i;  Iowa,  214;  West  r.  The  Iterlin,  B 
Iowa  r>32;  The  Freedom,  I..  U.  H  1'.  C. 
fi!>4;  The  Olbers,.^  Hen.  UH;  Vanphan  r. 
Si.x  Hundred  and  Thirty  Cahks,  7  Ilcn. 
fiOi',;  Alls-tin  f.  Talk,  20  Tex.  104;  Currell 
V.  .lohnson,  12  I^.  290;  .32  Am.  Dec.  117; 
Wilzler  v.  Collins,  70  Mo.  290;  ;^,'i  Am. 
Uep.  327.  In  Ciowdy  f.  !-yon,9  It.  Mon. 
U'.',  it  is  Baid:  "The  adoption  of  the 
principle  that  the  bill  of  lading  is  con- 
clusive on  the  carrier,  not  only  as  to  the 
apparent  but  also  as  to  the  actual  condi- 
tion of  Koods,  would  impose  on  him  the 
necessity,  for  self-protection,  of  opcn- 
iiiK  every  box  of  merchandise  to  exam- 
ine and  ascertain  the  condition  of  its 
contents  before  ho  receives  it.  This 
would  not  only  be  inconvenient  but 
inipracticablo  on  the  part  of  steam- 
boat owners,  on  account  of  the  vast 
carrying  buBincHS  on  the  rivers.  The 
injury  that  would  be  inllicted  on  the 
owners  of  the  freight  by  the  process 
that  it  would  be  subjected  to  in  conse- 


<iuence  of  such  a  requisition  is  also  a 
cogent  argument  against  it.  The  bulk 
of  every  package  wr>uld  have  to  be 
broken  up  and  examined,  and  the  con- 
tents of  every  box  of  merchandise  of  the 
most  delicato  texture  opened  and  han- 
dled before  a  bill  of  lading  could  b<s 
safely  signed.  Public  policy,  therefore, 
pruhibiisn  rule  which  would  bo  pro- 
ductive of  such  rt'sulls,  and  which,  in- 
stead of  bencllting,  would  inllictanin* 
Jury  upon  the  coiiimiinily." 

2  I'rico  I'.  l'owull,3  N.  V.  ,s:i2;  Nelson 
V.  Stephenson,  5  Duer.  S:>s,  The  Martha, 
olcclt,  40;  The  /one,  2  Sprague  19;  The 
Historian,  2S  Fed.  Hep.:)*;. 

:<  See  Wheel.  Carr.  2!K),  criticising  Hond 
r.  Frost,  H  l.a.  Ann.  297;  Monigomery  v. 
The  Abby  Pratt,  «  1m.  Ann.  410.  Mr. 
Wheeler  ((Carriers  290)  says:  "The 
weijiht  of  authority  however  i^  against 
the  proposition  that  the  admission  in 
question  if  not  qualilled  relates  only  to 
the  external  appearance  of  the  goods. 
The  clause  "value  and  contenta  un- 
known" and  similar  clauses  were  un- 
doubtedly introduced  into  bills  of  lading 
to  protect  the  carrier  from  the  pre- 
sumption referred  to  and  it  is  certainly 
going  a  great  way  to  maintain  that 
where  the  carrier  receipts  for  the  goods 
in  good  order  without  any  clause  of 
limitation  he  can  claim  that  all  this 
means  is  that  the  box  was  in  good  or- 
der," citing  The  Howard  v.  W'ssman, 
18  How.  2M1.  The  word  "apparent"  be- 
fore the  word  good  does  not  change 
the  effect.    The  Orillamme,  1  Sawy.  176. 

261 


•  MM 


§172 


MODIFICATION  OF  LIABILITY 


[part  II. 


cital  ill  tlu'  bill  of  lading  that  they  were  received  in 
good  order,  is  evidence  that  they  were  not  so  scented 
when  shipped.'  A  contract  to  deliver  bales  of  cork 
wood  in  "good  condition"  is  not  broken  by  their  neces- 
sary iiitting  for  the  pnrpose  of  conveniently  stowing 
thein.- 

§  171.  Invoice  Value. —  When  the  damage  to  be 
recovered  is  restricted  to  the  ''invoice  value"  of  the 
goods,  it  will  be  computed  in  the  lisual  way  up  to  that 
value,  irresptH'tive  of  their  market  value,  as  damaged, 
at  the  port  of  destination.^ 

§  172.  "Leakage  and  Breakage." — The  word 
"leakage"  being  intended  to  protect  the  carrier  from 
liability  to  compensate  the  owner  of  the  goods  for 
the  waste  occasioned  by  leakage,  does  not  extend  to 
damage  caused  b}'  the  liquid,  to  other  good.s.  So 
"breakage"  will  not  cover  damage  done  by  the  broken 
goods  to  other  goods.'  Nor  will  "leakage"  cover  a 
loss  cau.sed  by  persons  tampering  with  the  casks  for 
the  purpose  of  extracting  some  of  the  contents.'  In 
England,  negligence  being  absent,  the  condition  as  U\ 
leakage,  extends  to  all  leakage,  whether  ordinary  or 
extraordinary."     But  in  the  United  States,  such  a  con- 


1  The  T.  n.  Goddard,  12  Fed.  Uep.  175. 
-  Carao  r.  Gnimaracs,  14  I'liila.  614. 

3  brown  V.  Cunard  S.  S.  Co.,  147  Masa. 
58;  16  N.  E.  Rep.  717. 

4  Thrift  V.  Youle,  L.  U.  2  C.  1'.  Div. 
432. 

s  The  Giglio  v.  The  Britannia,  31  Fed. 
Kep.  432. 

6  Ohrloff  V.  IJriscall,  L.  U.  1  V.  C.  2.S1 ; 
4  Moore  V.  C.  C.  (N.  S.)  70;  The  Ilelene, 
15.  &L.  429.  Turner,  L.  J.,  sayinR:  "On 
the  argument  different  views  were  sug- 
gested by  counsel  as  to  the  meaning  of 
the  word  'leakage.'  For  the  respond- 
ents it  was  contended  that  the  word 
means  only  ordinary  leakage  (.which 
according  to  the  evidence  amounts  to 
one  per  cent.),  and  does  not  extend  to 

262 


extraordinary  leakage,  snch  as  that  in 
question,  amounting  to  an  alleged  defi- 
ciency of  2,000  gallons.  •  *  *  * 
The  learned  judge  of  the  admiralty 
court  appears  to  have  adopted  the  con- 
struction of  the  word  'leakage'  con- 
tended  for  by  the  respondents.  *  •  • 
But  we  do  not  think  such  a  construction 
allowable.  The  condition  that  the  ship- 
owners are  not  to  be  accountable  for 
leakage  does  not,  in  its  ordinary  and 
grammatical  sense,  put  any  limit  to  the 
quantity  of  leakage;  and  on  principle, 
therefore,  we  do  not  think  it  would  be 
justifiable  to  add  any  snch  limit  to  its 
terms.  Nor  are  we  avare  of  uny  au- 
thority for  doing  so." 


1\ 


on.  XII.] 


MODIFICATION  OF  LIABILITY. 


§  176 


(liLion  does  not  allow  the  carrier  to  deliver  empty 
casks.  The  ordinary  signification  of  "leakage,"  it  is 
very  properly  said,  is  the  loss  of  a  i>art,  not  the  whole.* 

§173.  "On  Lakes  or  Rivers." — Damage  "on 
tlie  lakes  or  rivers"  means  in  the  navigation  of  the 
lakes  and  rivers,  and  accordingly  where  a  quantity  of 
wheat  was  lost  by  tlie  sinking  of  a  wharf  boat  on  which 
it  was  stored,  awaiting  the  arrival  of  the  packet  on 
which  it  was  to  be  shipped,  the  loss  was  not  within  the 
exception. - 

§  174.  "Pilot,  Master  or  Mariners." — Exemption 
from  liability  for  the  acts  of  pilot,  master  or  mariners 
does  not  include  the  negligence  of  stevedores  employed 
by  them  to  unload  the  vessel,''  or  a  carnian  authorized 
by  the  consignee  to  receive  the  gtnwls.^  Hut  the?  pur-ser 
of  a  vessel  in  a  "mariner."'' 

§  175.  "Port  of  Discharge."— The  words  "port  of 
discharge"  in  a  clause  in  a  bill  of  lading  requiring 
claims  for  loss  or  damage  to  be  made  to  the  agent  of 
the  carrier  at  the  "port  of  discharge"  refer  to  the  port 
to  which  the  goods,  for  a  loss  whereof  a  claim  is  made, 
were  shipped.'^ 

§  176.  "  Privilege  of  Re-shipping."— The  "priv- 
ilege of  re-shipping"  is  reserved  in  a  bill  of  lading  to 
allow  the  carrier  to  re-ship  the  goods  in  another  boat, 
without    rendering    him    responsible    for    the    conse- 


i3 


•n 


1  Brauer  v.  The  Almoner,  18  Ia.  Ann. 
2G6;  Thomas  V.  The  Morning  Glory,  13 
La.  Ann.  269;  71  Am.  Dec.  609;  Arend  v. 
Liverpool  etc.  Steamship  Co.,  6  Lans. 
459;  64Karb.  118. 

3  St.  Louis  etc.  R.  Co.  v.  Smnck,  19 
Ind.  302. 

3  Znngv.  Hoaland,  6  Daly  186. 


*  Gnillanme  r.  Ilambnrg  etc.  Packet 
Co.,  42  N.  Y.  212;  Gleadell  v.  Thompson, 
56  N.  Y.  194. 

s  Spinette  v.  Atlas  Steam.  Co.,  80  N.  Y. 
71 ;  .S6  Am.  Uep.  579,  reversing  s.  c.  14 
Hnn.  lUO. 

6  Knoll  f.  U.  .S.  etc.  Steamship  Co.,  33 
K.  Y.  (S.  C.)  42a. 

263 


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§177 


MODIFICATION  OF  LIABILITY.  [PART  II. 


■**■<; 


quences  of  a  deviation.*  But  it  does  not  discharge  the 
boat  from  any  liability  not  excepted  in  the  contract; 
and  though  the  right  is  secured  of  trans-shipping  on 
another  boat,  the  liability  continues  until  the  goods 
are  safely  delivered  at  the  port  of  destination,  if  under 
the  like  circumstances  the  carrier  would  be  liable  had 
the  loss  occurred  on  his  own  boat."  It  is  a  privilege 
reserved  to  the  boat  and  not  an  additional  undertaking 
of  '!  '^  carrier.^  It  is  not,  therefore,  a  breach  of  his 
coi^rr'  ♦:,  if,  hy  reason  of  low  water,  his  boat  is  ob- 
struct*'.! and  he  fails  to  deliver  the  goods,  Avhich  by  re- 
shippiro-  ue  might  have  delivered.*  But  ilie  clause 
only  ^i^es  power  to  transfer  to  another  boat,  and  will 
not  autiiorize  a  temporary  storing  of  the  goods  on  a 
wharf-boat  at  the  point  of  re-shipment."'  The  addi- 
tional expense  of  re-shipping  is  to  be  borne  b}-  the  ves- 
sel on  which  the  goods  were  first  sent." 

§  177.      "  Quantity    Guaranteetl."  —  The    words 
"quantity  guaranteed,"  in  a  bill  of  lading  of  grain. 


1  But  where  a  carrier  receives  goods 
to  be  conveyed  with  "privilege  of  re- 
shipping,"  and  the  goods  are  re-shipped 
on  a  boat  which  deviates  from  her 
route,  the  carrier  is  liable.  Little  v. 
Semple,  8  Mo.  !W ;  40  Am.  Doc.  US. 

2  Ciirrr.  The  Michigan,  27  Mo.  196; '2 
Am. Dec.  196;  Little  v.  Soinple,  gupra. 
"It  is  but  a  privilege  to  the  carrier  in 
the  execution  of  his  contract  to  convey 
and  deliver,  inserted  for  his  own  bene- 
flt,  to  secure  him  llie  advantage  of  as 
great  a  portion  of  freight  as  he  could 
earn,  and  to  throw  upon  the  owner  any 
increase  of  expense.  The  relation  of 
carrier  continues  from  the  shipment  of 
the  goods  until  their  arrival  at  the  des- 
tined port  and  delivery,"  Cassilay  v. 
Young,  41?.  Mon.  26.5;  99  Am.  Dec.  806; 
McGregor  v.  Kilfiore,  G  Ohio  X>H ;  27  Am. 
Dec.  260;  IVhitesides  i-.  Uussell,  8  W.  & 
8.  44;  Punseth  r.  Wade,,S  111.285.  A  un- 
dertook to  ship  a  lot  of  fruit  from 
Trieste  to  New  \ork,  via  Talermo.  He 
had  the  right  to  trans-ship  at  Palermo  on 

264 


one  of  his  own  ships,  which  was  loaded 
when  the  fruit  arrived  there.  Instead 
of  trans-shipping  by  another  line,  he 
kept  the  fruit  there  for  flfty-flve '!iys, 
and  it  became  damaged.  Ifeld,  that  A 
was  liable.  Mina  v.  I.  &  V.  Floiio  S.  S. 
Co.,  23  Fed.  Uep.  916. 

3  Goods  were  shipped  from  New  Or- 
leans to  Cincinnati,  under billsof  lading 
in  the  usual  form,  undertaking  for  their 
delivery,  and  containing  the  words 
"privilege  of  re-shipping."  Atthe  Ohio 
Falls  the  boat  waited  a  month  before 
there  was  water  enough  to  carry  her 
over.  Held  that  it  was  competent  to 
show  by  usage  that  under  these  words 
as  used  in  a  bill  of  lading,  it  was  not  the 
carrier's  duty  to  re-ship  instead  of 
waiting  for  a  rise.  Broadwell  v.  Butler, 
1  Newb.  171 ;  6  McLean  29fi. 

*  oturgess  I'.The  Columbns,  23  M0.2.SO. 

5  Carr  V.  The  Michigan,  27  Mo.  196;  72 
Am.  Dec.  257. 

8  Hatchett  f.The  Compromise,  12  La. 
Ann.  783. 


CH.  XII.] 


MODIFICATION  OF  LIABILITY. 


§178 


mean  that  the  bill  of  lading  is  conclusive  evidence  of 
the  amount  of  grain  to  be  delivered,  and  if  it  falls  short 
the  carrier  will  pay  for  the  shortage.  In  Bisscl  v. 
Camphcll,^  it  is  said:  "There  has  been  considerable  liti- 
gation in  the  courts  growing  out  of  the  claims  of  con- 
signees against  carriers  for  shortage,  and  it  must  al- 
ways be  difficult  to  show  whether  the  shortage 
was  occasioned  by  the  misconduct  of  the  carrier  or 
some  mistake  in  the  measurements.  Hence,  some 
years  since,  the  clause  was  inserted  in  bills  of  lading 
upon  the  canals,  that  the  consignee  might  make  a  de- 
duction from  the  freight  on  account  of  shortage  in  sub- 
stantially the  form  contained  in  the  bill  of  lading  in 
the  case  of  Mci/rr  v.  Peck.'-  It  seems  to  have  been  suj)- 
posed  that  such  a  clause  would  make  the  carrier  re- 
sponsible for  the  quantity  sjx'cifled  in  his  bill  of  lad- 
ing, but  the  Court  of  Appeals  held  otherwise,  and  re- 
cently the  words  'quantity  guaranteed'  Lave  been  in- 
serted." 

§  178.  **  Ready  to  Discharge." — A  vessel  is  not 
"ready  to  discharge''  within  a  bill  of  lading  providing 
that  all  goods  are  "to  be  taken  from  alongside  im- 
mediately she  is  ready,"  etc.,  when  she  cannot  dis- 
charge without  destroying  them.  It  was  so  held,  as 
to  a  consignment  of  oranges  arriving  in  New  York, 
when  the  weather  was  below  zero,  and  discharged 
against  the  consignee's  protest.-*  But  a  provision  of  a 
bill  of  lading  that  the  ship  may  discharge  fruit  when 
she  is  ready,  and  that  the  goods  shall  thereafter  be  at 
the  consignee's  risk,  is  a  reasonable  stipulation,  and 
valid,  so  far  as  to  permit  the  discharge  of  so  much 
green  fruit  as  can  be  removed  by  the  consignee  during 
the  day,  out  of  danger  from  frost  at  night,  providing 

3  The  Aline,  19  Fed.  Rep.  875. 


1  54  N.  Y.  353. 

2  28  N.  Y.  590. 


•a 


:c-- 


265 


§180 


MODIFICATION  OF  LIABILITY. 


[part  II. 


the  consignee  is  given  timely  notice  of  the  discharge 
and  opportunity  to  take  care  of  his  goods,  and  not 
otherwise.^ 


if 


§  179.  **  Restraints  of  Princes." — An  exception 
in  a  bill  of  lading  of  acts  or  restraints  of  princes  and 
rulers,  refers  to  the  forcible  interference  of  a  State  or 
the  government  of  a  country  taking  possession  of  the 
goods  by  strong  hand,  and  does  not  extend  to  legal  pro- 
ceedings in  the  courts  of  a  foreign  countrj'.^ 

§  180.  "Robbers"  and  "Thieves."— Robbery  is  dis- 
tinguished from  theft  in  containing  the  elements  of 
force  or  fear.  The  word  "robbers"  in  a  bill  of  lading 
will  not  protect  the  carrier  where  the  goods  are  stolen 
from  him.^  And  "thieves"  is  restricted  to  thieves  ex- 
ternal to  the  ship,  and  will  not  exempt  the  carrier  from 
liability  for  theft  committed  by  one  of  the  crew  or  a 
passenger,*  or  where,  after  the  goods  are  constructively 
delivered  to  the  consignee  they  are  given  out  of  the 
custody  of  the  carrier,  to  one  who  receives  them  with 
intent  to  steal  them.'''  Where  money  is  stolen  from  a 
carrier,  under  such  a  state  of  facts  as  will  exonerate 
him  from  liability  for  the  loss,  the  carrier  will,  never- 
theless, be  answerable  for  the  money  in  indebitatus  as- 
sumpsit, if  he  has  recoven^l  it  from  the  thief."  The  ex- 
ception of  loss  by  thieves  or  robbers  is  generallj'  a  pro- 
tection unless  it  be  shown  that  there  was  negligence 
on  the  part  of  the  ship,  which  contributed  to  the  theft 
or  facilitated  it.^ 


iBonani:ov.  The  liaskenna  Bay,  30       L.  R.9Q.  B.  646;43  L.  J.  Q.  B.  205;  22  W. 


Fed.  Uep.  697. 

1  Finlny  v.  Liverpool  Steamship  Co., 
2:tL.  T.  N.  S.  251. 

3  DcEothschild  v.  Royal  Mail  Steam 
Packet  Co.,  7  Kx.  734,  21  L.  T.  Ex.  273. 

4  Taylor  v.  Liverpool  etc.  Steam  Co., 

266 


E.  762;80L.  T.  (N.  S.)  714. 

3  Tarbell  v.  Royal  Ex.  Ship.Oc,  110. 
N.  Y.  1711;  6  Am.  St.  Bep.  350;  17  N.  E, 
Rep.  721. 

6  St.  John  V.  Express  Co.,  1  Woods  612. 

7  The  Saratoga,  20  Fed.  Rep.  869. 


CII.  XII.J 


MODIFICATION  OF  LIABILITY. 


182 


§  181.  "Tow  and  Assist  Vessels."— Liberty  given 
a  vessel  to  call  "at  any  port  or  ports,"  or  to  tow  and 
assist  vessels  "in  all  situations,"  refers  to  ports  along 
the  course  of  the  voyage  specified,  or  vessels  met  with 
in  the  ordinary  course  of  such  voyage.  Where  a  ves- 
sel, after  loading,  proceeds  40  miles  directly  out  of  her 
course  to  take  in  tow  a  disabled  vessel,  and  is  detained 
about  seven  days,  it  is  an  unjustifiable  deviation.^ 

§  182.  "  Value  and  Contents  Unknown." — These 
words  in  a  bill  of  lading  exclude  the  inference  of  any 
sulmission  by  the  carrier  as  to  the  quantity  or  quality 
of  the  contents  of  the  package  at  the  time  of  delivery, 
beyond  what  is  visible  to  the  eye  or  apparent  from 
handling  it — nothing  is  implied  but  the  receipt  of  the 
l)i'operty  in  good  order  externally,  and  the  carrier  may 
show  by  parol  that  the  value  and  contents  were  below 
the  estimat'  placed  upon  them  by  the  shipper.-  The 
effect  of  these  words  is  to  qualify  the  admission  made 
that  they  were  "received  in  good  order  and  condition," 
and  to  shift  the  burden  of  proof  as  to  the  condition  of 
the  contents  when  received.'^  The  carrier  has  com- 
I)lied,  prima  facie,  with  his  contract  when  he  has  de- 
livered the  box  or  case  or  other  article  externally  in 
good  condition.  The  burden  of  proof  is  then  upon 
the  shipper  to  show  that  the  contents  were  in  good 
order  and  condition  when  shipped;^  that  the  quantity 
claimed  to  have  been  shipped  was  actually  shipped  and 
that  the  non-delivery  resulted  from  negligence.^     And 


■/J 


■  '«« 

n 

■■■i 


:t' 

:,t: 


1  Ardan  S.  S.  Co.  v.  Theband,  35  Fed.       ler  i-.  R.  Co.,  90  N.  Y.  430;  4S  Am.  Rep. 


Rep.  G20.     See   Stuart  f.    Uritish  etc. 
Steam  Co.,  32  L.  T.  (.\.  S.)  257. 

2  The  California,  2  Saw.  12;  The  Col- 
ombo, 3  Blatcht.  521 ;  Clark  r.  Bnrnw  , 
12  How.  272;  St.  Lonig  etc.  R.  Co.  v. 
Knight,  122  U.  S.  79;  7  S.  C.  Uep.  11,32; 
Mattbie8cen  etc  Oo.  v.  Oaai,  po$tf  Mil- 


179. 

8  Wheel.  Carr., 291. 

4  Weutwortb  f.  The  Realm,  10  La.  Ann. 
18. 

«  The  Venner,27  Fed.  Rep.  623;  The 
Nora,  14  Fed.  Hep.  429;  The  Bermuda,  27 
Fed.  Bep.476i  The  lamaele,  14  Fed. Bep. 

267 


§184 


MODIFICATION  OF  LIABILITY. 


[PAKT  11. 


v. 


■■*' 

'm' 


the  shipper  may  also  show  that  the  goods  were  of  a 
greater  value  than  described.^ 

Conditions  and  Exceptions  Peculiar  to  Carriage 

by  Land. 

There  are  other  exceptions  and  conditions  found 
nearly  always  in  contracts  for  the  carriage  of  goods 
by  land,  as  for  example: 

§  183.  "All  Rail."  —Where  the  goods  are  to  be 
carried  "all  rail/'  the  carrier  is  absolutely  liable  if 
there  is  any  deviation,  as  where  the  ^oods  are  carried 
by  sea,^  or  by  any  other  mode  but  y  rail  even  for  a 
few  miles.^  But  a  necessary  crossing  of  water  by 
ferry  is  allowed.* 

§184.  "Article."  — A  notice  that  the  carrier  v,  ill 
only  be  liable  for  ,|100  on  any  article,  will  make  him 
liable  to  that  amount  for  each  one  of  the  articles  con- 
tained therein,  where  the  property  receipted  for  is  a 
trunk.''  But  as  a  trunk  is  generally  used  to  carry  a 
collection  of  articles  of  different  kinds,  the  reason  of 
this  ruling  does  not  extend  to  a  box  or  other  package.*'' 


491.  Matthiessenetc.  Co.  v.  Gnsi,29  Fed. 
Rep.  TH ;  Abbott  v.  Nat.  S.  S.  Co., 33  Fed. 
Rep.  895;  Eaton  v.  Newmark,  33  Fed. 
Rep.  891;  The  Vincenzo  T.,  lOBen.  228. 

1  Fassett  v.  Knark.S  I.a.  Ann.  694;  Le- 
bean  v.  Gen.  Steam  Nav.  Co.,  L.  R.  &  C. 
P.  88. 

«  IJostwick  V.  R.  Co.,  45  N.  Y.  712. 

3  Maghee  v.  R.  Co.,  45  N.  Y.  514. 

•4  Maghee  t'.  R.  Co., supra. 

s  Earl  V.  Cadmus,  2  Daly  237;  Hop- 
kins V.  Westcott,  6  Blatchf.  9. 

6  Wetzell  V.  Dinsmore,  64  N.  Y.  49G. 
In  this  case  the  carrier  received  at  New 
York  for  transportation  to  plaintiffs  at 
St.  Lonis,  a  package  containing  three 
gross  or  cases  of  "Shallenbergcr'a  pills," 
worth  $113.50  per  gross.  The  receipt  or 
bill  of  lading  contained  a  clause  that  the 

268 


holder  should  not  demand  more  than 
|50  for  any  loss  or  damage,  "at  which 
the  article  forwarded  is  valued,  and 
which  shall  constitute  the  limit  of  the 
liability  of  the  company."  The  three 
cases  were  each  separately  addressed 
to  plaintiffs  and  were  then  wrapped  up 
with  a  proper  cover  in  a  single  package 
similarly  addressed.  Only  one  of  the 
cases  reached  the  plaintiffs.  An  action 
was  brought  to  recover  for  the  loss,  and 
it  was  held  that  "the  article  forwarded" 
was  the  single  package,  and  that  plain- 
tiffs were  not  entitled  to  recover  $50 
upon  each  of  the  missing  cases;  the 
Court  saying  that  if  each  of  the  three 
boxes  had  contained  a  different  sort  of 
thing  and  the  defendant  had  known  of 
this  the  case  would  have  been  altered. 


r 


CH.  XII.] 


MODIFICATION  OF  LIABILITY. 


§186 


§  185.  "  C.  O.  D."  —The  letters  "C.  O.  D."  refer 
to  the  value  or  price  of  the  package  which,  as  marked 
on  it,  is  to  be  collected  on  delivery,  and  transmitted 
to  the  consignor.*  They  have  nothing  to  do  with  the 
transportation  charges,^  nor  do  they  affect  the  char- 
acter of  the  shipment.  The  duty  to  transport  safely 
remains  the  same.  But  if  the  consignee  neglects  or 
refuses  to  take  the  property  and  pay  the  money,  the 
former  remains  in  the  carrier's  hands,  subject  only  to 
his  liability  as  a  warehouseman.^  If  a  carrier  of  goods 
marked  C.  O.  D.  takes  the  consignee's  check  on  de- 
livering the  goods,  and  the  consignor  receives  the 
check  from  the  carrier  without  objection,  and  it  turns 
out  that  there  are  no  funds,  the  carrier  is  not  liable.'' 
But  \vhen  a  bill  of  lading  requires  the  carrier  to  col- 
lect charges  upon  the  goods  on  delivery,  if  the  carrier 
delivers  the  uoods  without  collecting  the  sum  due,  he 
becomes  liable  tlierefor  himself.^  A  receipt  as  for  a 
package  not  sent  (\  O.  D.,  given  for  a  package  ordered 
sent  (\  (),  1).,  operates  as  a  refusal  to  send  the  package 
C.  0.  D.« 

§186.  "Depot."— The  word  "depot"  in  a  clause 
exempting  the  carrier  from  "unavoidable  accidents  of 
the  railroad  and  of  fire  in  the  depot,"  is  a  broad  one, 
and  includes  every  place  where  the  carrier  is  ac- 
customed to  receive,  deposit  and  keep  readj'  for  trans- 
portation or  delivery,  goods  and  merchandise.'^ 
Where  goods  are  to  be  forwarded  to  a  certain  "depot," 


1  Brooks  V.  Am.  Ex.  Co.,  U  Hun.  864. 
United  Statna  Express  Co.  r.  Keefer,  59 
Ind.  263;  American  etc.  Express  Co.  r. 
Schier,  55111.140;  American  Express  Co. 
r.  Leeem,  .TO  111.  .S12;  Collender  v.  Dins- 
more,  55  N.  Y  200 ;  14  Am.  Rep.  224 ;  Lane 
V.  Chadwick,  146  Mass.  68. 

2  Am.  Express  Co.  v.  Schier, 55  HI.  140. 

3  Gibson  I'.  Am.  Express  Co.,  1  Hnn,  387. 
*  Rattiban  v.  Steam  Co.,  67  How.  Pr. 

i9i. 


5  Meyer  v.Lemcke,  31  Ind.  208 ;  Murray 
V.  Warner,  55  N.  H.  546;  20  Am  Rep.  227; 
see  Tooker  v.  Gormer,  2  Hilt  71. 

6  Smith  (?.  South.  Ex.  Co.,  16  South  Rep. 
62. 

1  Maghee  v.  R.  Co.,  45  N.  Y.  514;  see 
Hall  V.  R.  Co.,  14  Phila.  414;  Stanard 
Milling  Co.  i>.  White  Line  Co.,  26  S.  W. 
Rep.  704  (Mo.) . 


269 


f  Mf 

IS 

n 
.a 
,o 

■■■i 


■'I 


§190 


MODIFICATION  OF  LIABILITY.  [PART  II. 


this  excuses  a  personal  delivery,  but  does  not  relieve 
the  carrier  from  the  duty  of  properly  caring  for  them 
after  their  arrival.^ 


lie: 


''V 
■'!»■. 


§  187.      "Feed,  Water  and  Take  Proper  Care." 

— A  stipulation  in  the  carriage  of  stock  that  the 
owner  or  shipper  will  "feed,  water  and  take  proper 
care  of"  them,  relieves  the  carrier  from  liability  for 
an  injury  caused  by  the  want  of  food,  water  and  care 
in  the  keeping.- 

§  188.  "  Fire." — Where  a  loss  by  Are  is  exempt<Ml, 
and  the  goods  are  burned  by  a  mob,  the  carrier  is  ex- 
cused.^ 

§  189.  "Household  Goods." — An  agreement  to 
transport  "household  goods"  includes  every  thing  of 
a  permanent  nature  that  is  used  or  purchased  or 
otherwise  acquired  by  a  person  for  his  home,  but  not 
articles  purchased  or  kept  for  consumption.* 

§  190.  "Load  and  Unload." — A  provision  that 
the  shipper  will  "load  and  unload"  the  stock  at  his 
risk,  places  upon  him  the  rsk  of  damage  to  his  prop- 
erty or  himself  from  the  manner  of  loading  or  unload- 
ing.°  It  does  not,  however,  place  any  responsibility 
upon  him  during  the  transit,"  nor  include  personal  in- 
juries which  he  may  sustain  from  external  causes,  as 


1  Merchants  Desp.  Co.  v.  Merriam,  111 
Ind.  5;  UN.  E.  Rep.  954. 

2  Central  B.  Co.  r.  Hryant,  73  A!a.  722. 

3  Hall  V.  B.Co.,14  Phila.  414;  Werthei- 
mert'.  R.  Oo.,17Blatcht.421, 1  Fed.  Bep. 
232,  A  statate  making  a  railroad  liable 
to  any  person  whose  bnildings  or  prop- 
erty are  destroyed  or  injured  by  Are 
commnnicated  by  its  locomotives  does 
not  apply  to  Koods  in  the  hands  of  the 
railroad  or  carrier  or  warehonseman  at 
the  time  of  their  destruction.   Bassett 

270 


r.  R.  Co.,  145  Mass.  129;  1,3  N.  E.  Rep. 
.'!70.  Itnt  it  does  include  goods  which 
have  left  the  carrier's  hands  and  are 
stored  in  a  warehouse  leased  by  the 
owner  from  the  railroad.  Blaisdell  v. 
B.  Co  ,  145  Mass.  132;  13  N.  B.  Bep.  373. 

4  Smith  V.  Findlty,  34  Kas.  316;  8  Pac. 
Rep.  871. 

.1  Meuerv.  R.  Co.,59  K.  W.  Bep.  945, 
(S.  D.). 

6  Indianapolis  etc.  B.  Co.  v.  Allen,  31 
lad.  304. 


OH.  XII.] 


MODIFICATION  OF  LIABILITY. 


§193 


for  example,  being  run  into  by  another  train  while  so 
engaged;^  nor  does  it  relieve  the  carrier  from  neg- 
ligence.'^ It  does  not  embrace  loading  or  unloading  on 
the  way,^  and  it  confers  no  right  on  the  shipper  to  de- 
cide when  and  where  the  loading  or  unloading  shall 
take  place,  but  rather  imposes  the  duty  on  him  to  do 
so  whenever,  in  the  opinion  of  the  carrier,  it  is  neces- 
sary.* 

§  191.  "Loss." — A  delivery  of  the  goods  by  the  car- 
rier to  a  person  not  entitled  to  receive  them,  is  not  a 
"loss,""*  nor  is  a  non-delivery  or  conversion  of  them,''  or 
damage  or  deterioration  while  in  transit.^ 

§192.  "On  the  Train." — An  exemption  of  lia- 
bility for  injuries  while  "on  the  train,"  is  not  restricted 
to  the  time  when  the  passenger  is  actually  riding  in 
the  car,  but  protects  the  company  while  he  is  on  the 
station  platform,  going  from  one  car  to  another.®  But 
the  phrase  "riding  free"  in  a  contract  that  "persons 
riding  free  to  take  charge  of  the  stock,  do  so  at  their 
own  risk  of  personal  injury,"  does  not  cover  an  injury 
to  one  while  engaged  in  loading  the  stock,  and  who  it 
did  not  appear  was  to  take  passage  on  the  train." 

§  193.  "  Package  or  Thing." — Under  an  agree- 
ment exonerating  a  carrier  from  liability  for  more 
than  a  certain  amount  upon  a  "single  package,"  each 
package  among  a  number  inclosed  in  a  box,  which  the 
carrier  knows  to  contain  such  packages,  is  to  be  re- 


< 


■■a 

s 

n 
o 
o 


x 

X 


1  Stinson  v.  B.  Co.,  32  N.  Y.  33S. 

2  Hawkins  v.  R.  C,  17  Mich.  67;  Sisson 
V.  R.  Co.,  14  Mich.  487;  Bills  v.  R.  Co.,  84 
N.  Y.  5. 

3  Penn.  v.  R.  Co.,  49  N.  Y.  204. 

4  McAlister  v.  R.  Co.,  74  M  >.  351. 

8  Bait.  etc.  R.  Co.  v.  McWhinney,  36 
Ind.  436. 


«  Porter  v.  Sonth.  Ex.  Co.,  4  S.  C.  135; 
Erie  Dispatch  Co.  v.  Johnson,  11  S.  E. 
Rep.  441  (Penn.J;'Bardwell  v.  Am.  Ex. 
Co.,  36  Minn.  344;  28  N.  W.  Rep.  925. 

1  Heil  V.  R.  Co.,  16  Mo.  (App.)  363. 

8  Poncher  v.  R.  Co.,  49  N.  Y.  263,  and 
see  Gallin  f.  R.  Co.,  L.  R.  10  Q.  B.  312. 

9  Stinson  f.  R.  Co.,  32  N.  Y.  333. 

271 


§195 


MODIFICATION  OF  LIABILITY. 


[part  II. 


garded  as  an  index'^'"'l<^wt  package.*  The  word  "pack- 
age" is  dofinod  by  the  Supreme  Court  of  Alabama  as 
a  small  parcel  or  bundle  whose  appearance  gives  no 
adequate  information  of  its  contents.  A  hogshead  of 
tobacco  or  a  bale  of  cotton  would  not  come  within  the 
term,^  nor  would  70,000  lbs.  of  corn  in  bulk.-'  In  a 
recent  case  in  Illinois,  three  bales  of  furs  were  de- 
livered to  an  express  company  for  transportation,  the 
receipt  given  by  the  company  limiting  its  liability  to 
|50  for  any  loss  or  damage  to  any  "box,  package  or 
thing,"  unless  the  just  and  true  value  thereof  Avas 
therein  stated.  It  was  held  that  the  shipper,  even 
though  no  disclosure  of  the  valu«»  had  been  given,  Avas 
entitled  to  recover  |50  on  each  of  the  three  bales.* 

§194.  "  Perishable  Property." —Is  that  which 
from  its  nature,  decays  in  a  short  space  of  time  with- 
out reference  to  the  care  it  receives.  Of  that  char- 
acter are  many  varieties  of  fruits,  some  kinds  of 
liquors,  and  num(>rous  vegetable  ]>roductions.  Rut 
not  goods  which,  with  reasonable  care  can  be  preserved 
for  nmuj'  years.'' 

§  195.  *' Place  of  Destination."— The ''place  of  des- 
tination" is  not  the  point  on  the  carrier's  route  where 
he  is  to  deliver  the  goods  to  another  carrier,  but  is 
the  ultimate  destination — that  point  on  the  road  of  the 
first  or  connecting  carrier  at  which  the  consignee  is 
to  receive  the  goods,  according  to  the  usual  course  of 
business."  And  an  exemption  from  liability  after 
property  arrives  at  its  "place  of  destination,"  leaves 


1  Read   v.   Spanlding,   5   Boaw.,    ?Go; 
see  Wyld  v.  Pickford,  8  M.  &  W   US. 

2  Southern  express  Co.  v.  Crook,  44 
Ala.  468. 

3  Eosenstein  t;.  U.  Co.,  16  Mo.  (App.) 

272 


226;  see  McCoy  t>.  Western  Trans.  Co., 
42  Md.  498. 

4  ISoskowitz  V.  Adams  Ex.  Co.,  0  Cent. 
L.  J.  389. 

Sill.  Cent.U.Co.v.McClellan,04I11.58. 

6  Ayers  v.  R.  Co.  14  Blatchf.  9. 


CII.  XII.] 


MODIFICATION  OF  LIABILITY. 


§198 


the  carrier  still  liable  for  delivering  it  to  the  wrong 
person.^  Otherwise,  such  a  stipulation  is  valid,  and 
the  carrier's  liability  continues  thereafter  as  that  of  a 
warehouseman  only.^ 

§196.     "Through   Without   Transfer." —These 

words  in  a  bill  of  lading  are  construed  strictly;  and  a 
transfer  of  goods  from  a  car  to  a  Avarehouse  for  a  tem- 
porary purpose  is  held  to  amount  to  a  breach  of  the 
contract.^ 

§197.  "Transit." — A  release  of  a  railroad  from 
liability  for  "damage  to  goods  while  in  transit,''  will 
not  extend  to  a  total  loss  of  them  by  fire  while  in  the 
company's  warehouse  at  an  intermediate  station.^ 

§  198.  "  Unavoidable"  or  "  Inevitable  "  Accident. 
— We  have  seen  that  the  meaning  of  these  phrases  has 
been  sometimes  misunderstood. ''•  The  distinction  be- 
tween unavoidable  or  inevitable  accidents — the  terms 
being  synonymous,"  —  and  the  act  of  God,  is  best 
expressed  in  a  (Jeorgia  case:^  "The  latter  covers 
only  natural  accidents,  such  as  lightning,  tem- 
pests, earthquakes,  and  the  like,  and  not  acci- 
dents arising  from  the  negligence  or  net  of  man. 
To  make  out  the  case  of  an  exemption  for  a 
carrier  against  either  the  act  of  God  or  unavoidable 
accident  there  must  be  a  ris  major;  the  interfering 
<'ause  must  be  irresistible."  In  this  case,  the  loss  of 
a  bag  of  cotton  through  the  breaking  of  an  iron  chain 
on  the  boat,  was  held  not  an  "unavoidable  accident," 


2 

mm 
•.I 

n 
a 
o 


^ 


1  South.  Ex.  Co.  r.  Crook,  44  Ala.  4G3. 

2  Western  U.  Co.  v.  Little,  5  Sontd. 
Uep.  G(j8;  Drapers.  Delaware  etc.  Canal 
Co.,23N.  E.  Rep.  131. 

3  Robinson  v.  Merchants'  Desp.  Co., 

19 


4.5  la.  470;  Stewart  t.  Merchants' Desp. 
Co.  47  la.  229. 

4  Menzell  v.  R.  Co.,  1  Dill.  531. 

•■;  Ante,  §  121. 

n  Fowler  v.  Davenport,  21  Tex.  626. 

7  Centra'.  Line  v.  Lowe,  50  Ga.  609. 

273 


§199 


MODIFICATION  OF  LIABILITY. 


[part  II. 


even  though  it  appeared  that  the  chain  had  been  lately 
examined  and  then  appeared  sound;  that  it  had  pre- 
viously borne  heavier  weights,  and  that  the  breaking 
was  the  result  of  a  hidden  Haw.* 

§  199.  "Valiio  or  Cost.*' — Where  it  is  provided 
that  the  "value  or  cost"  of  the  i)roperty  at  the  place 
of  shipment,  shall  be  the  measure  of  damages,  the 
shipper  is  entitled  to  recover  its  value,  though  that 
be  greater  than  its  cost.- 


'I?:: 


1  "It  Bccms  absnnl  to  siiy,"  said  the 
Conrt,  "that  it  was  not  poHSiblo  to  have 
Avoided  the  breaking  of  tliis  chain  or 
rod.  It  ought  to  have  been  mnde 
stronger;  it  ongbt  to  have  been  tested. 
The  case  is  one  of  simple  failare  to  have 
A  good  Tcssel.    This  wns  donbtless  an 

274 


accident,  and  were  that  the  only  word 
aacdinthe  agreement  the  carrier  wonid 
bo  excnsed;  but  the  words  are  far 
stronger  than  this." 

2  Mo.  Phc.   U.  Co.  f.  Barnea,  'I  Tex. 
App.  Cas.  5Ty. 


r 


CHAPTER  XIII. 


THE   DUTY   TO   UE-DET,IVER. 


Skction  200.  Introductory. 

201.  Delivery  at  Proper  Place. 

202.  Delivery  in  Reasonable  Manner 

203.  Delivery  at  Proper  Time. 

204.  Delivery  Witliiii  KeasonaMe  Time. 

205.  Delivery  under  Special  Contract— Just  i  :ctlons  of  Shipper. 
20G.  Delivery  to  Wrong  Person. 

207.  Duty  of  Carrier  to  Notify  Consignor. 

208.  Riglit  to  Examine  Goods. 

209.  Claims  of  Ownersliip  by  Tliird  Parties. 

210.  Stoppage  in  Transitu. 

211.  Who  may  Sue  for  Loss  or  Injury  to  Goods. 

212.  Actions  for  Injury  to  or  Interference  witli  Goods. 

213.  Actions  for  Freight  Charges. 

214.  Power  to  Sell. 

215.  The  Carrier's  Lien. 

§  200.  Introductory. — Manifestly,  it  is  the  duty 
of  the  carrier  not  only  to  carry,  but  to  deliver  at  the 
destination;  and  his  responsibility  continues  until  that 
has  been  done,^  unless  the  owner  has  assumed  control 
before  the  goods  have  reached  there.-  The  delivery 
must  be  complete,  and  if  they  are  injured  or  destroyed 
wliile  the  carrier  is  transferring  them  from  his  vehicle 
to  the  place  of  delivery,  he  is  liable."*  Thus,  where 
goods  had  been  discharged  from  the  barge  of  a  North 


1  Eagle  V.  White,  6  Whart.  505;  37  Am. 
Dec.  134;  Farmers'  etc.  liank  f.  Cham- 
plain  Trans.  Co.,  IG  Vt.  52 ;  42  Am.  Dec. 
401 ;  23  vt.  186;  56  Am.  Dec.  68 ;  Nettles  t'. 
R.  Co.,  V  Rich.  190;  62  Am.  Dec.  409; 
Michigan  etc.  R.  Co.  v.  Day,  20111.375; 
71  Am.  Dec,27e;  Marshall  U.Am.  Ex.  Co., 
7  Wis.  1 ;  73  Am.  Dec.  381 ;  Gibson  v.  Cnl- 


ver,  17  Wend. 305;  31  Am.  Dec. 297;  Stone 
V.  Waitt,  31  Me.  409;  52  Am.  Dec.  621; 
Lamb  v.  R.  Co.,  2  Daly  464;  Schenkv. 
Propeller  Co.  60  Pa.  St.  109;  100  Am.  Dec. 
541. 

2  Stone  V.  Waitt,  31  Me.  409:  Bennett  v. 
TSynim,  38  Miss.  17 ;  75  Am.  Dec.  90. 

3  Knowles  v.  Dabney,  105  Mass.  487. 

275 


< 
■J 
rj 
K 


2! 


n 
a 
o 


z 

X 

■t 


§201 


THE  DUTY  TO  RE-DELIVER. 


[part  II. 


.|.»"  I 


River  carrier  to  his  "float"  in  the  Albany  basin,  and 
notice  repeatedly  given  to  the  forwarders  to  whom 
they  were  directed  to  take  them,  when  they  were  de- 
stroyed by  fire,  it  was  held,  that  the  transfer  to  the 
float  was  not  a  delivery,  but  merely  preparatory  to  de- 
livery, and  that  the  carrier  was  responsible  for  the  loss.^ 
The  delivery  must  be  actual  and  bona  fide,  and  not 
merely  formal;  and  therefore,  if  an  agent  of  the  car- 
rier abstract  the  package  while  in  the  act  of  delivering 
it,  the  carrier  will  be  liable,  even  though  a  receipt  be 
signed,  and  the  form  of  delivery  gone  through  by  the 
agent's  laying  the  package  for  a  moment  out  of  his 
hands.- 

There  are  four  requisites  to  the  exoneration  of  the 
carrier  from  further  responsibility  in  connection  with 
the  goods  by  his  making  delivery  of  them,  and  these 
are  that  it  must  be  made  (a)  At  a  proper  place; 
(b)  In  a  i*easonable  manner;  (c)  At  a  proper  time;  and 
(d)  Within  a  reasonable  time. 


§  201.  Delivery  at  Proper  Place. — The  failure 
of  a  common  carrier  to  deliver  the  goods  at  the  proper 
l)lace  of  delivery  readers  the  carrier  liable  for  any  loss 
or  injury  to  tliem  caused  thereby.''  Formerly,  when 
goods  were  transported  by  land,  with  teams,  it  was 
held  to  be  the  duty  of  carriers,  unless  a  contrary  usage 
had  been  established,  to  deliver  freight  to  the  con- 
signee personally  at  his  residence  or  place  of  business, 
according  to  the  circumstances;^  and  such  is  still  the 


1  Goold  V.  Chapin,  20  N.  Y.  259;  75  Am. 
Dec.  398. 

2  Am.  Ex.  Co.  t'.  Haggard,  37  lil.  465; 
87  Am.  Dec.  257. 

3  Bcnbowv.  U.  Co.,  Phill.  420;  93  Am. 
Dec.  7(i;  The  Sultana  v.  Chapman,  5  Wis. 
454;  see  Arnold  v.  Nat.  S.  S.  Co.,  29  Fed. 
Uep.  184. 

276 


4  Lawson  Rights.  Rem.  &  Pr.  §  1S20, 
Hntcli.  Ciirr.  341 ;  Storr  t'.  Crowley,  1 
Mc.  &  Y.  129;  Fish  v.  Newton,  1  Dner. 
45;  43  Am.  Dec.  649;  Gibson  v.  Culver,  17 
Wend.  305;  31  Am.  Dec.  297;  Hemphill  v. 
CUenie,  6  W.  &  .S.  02. 


CH.  XIII.] 


THE  DUTY  TO  RE- DELIVER. 


§201 


rule  as  to  that  class  of  carriers^  and  express  com- 
panies.- But  the  carrier  may  show  an  established 
usage  to  deliver  at  a  certain  place,  in  which  case  he 
is  discharged  from  his  liability  as  a  common  carrier 
by  a  delivery  at  such  jjlace.^ 

But  in  reference  to  vessels*  and  railroads,"'  a  dif- 
ferent rule  is  held,  and  (unless  there  is  an  established 
usage  of  a  different  kind"),  they  are  only  bound  to  de- 


1  liansemer  v.  R.  Co.,25  Ind.  434;  8" 
Am.  IJcc.  367;  Eagle  r.  White,  6  Wliart. 
605;  Gibson  v.  Culver,  mipra. 

2  "For  this  modern  species  of  carriage 
was  established  for  the  purpose  of  ex- 
tending to  the  public  the  advantages  of 
personal  delivery  enjoyed  in  all  cases 
of  land  carriage  prior  to  the  introduc- 
tion of  transportation  by  rail."  Witbeck 
f.  Holland,  45  N.  Y.  13;  6  Am.  Uep.  23; 
ESBarb.  443;  Am.  Express  Co.,  v.  Robin- 
son, 72 ra.  St.  274 ;  Am.  Ex.  Co.  v.  Hackett, 
39  Ind.  250;  95  Am.  Dec.  691 ;  Baldwin  i<. 
Am.  Ex.  Co.,  23  111.  202 ;  74  Am.  Dec.  191 ; 
Chicago  etc.  R.  C  '.  v.  .Sawyer,  G9  111.  2S9; 
18  Am.  Rep.  613;  Am.  Ex.  Co.  v.  Wolf,  79 
111.432;  Am.  Kx.  Co.  r.  Baldwin,  26  111. 
604;  79  Am.  Dec.  389;  South.  Ex.  v.  Ar- 
uiistead,  50  Ala.  350;  Am.  Ex.  Co.,  r. 
Schier,  55  111.  140;  Marshall  r.  Am.  Ex. 
Co.,  7  Wis.  1;  Haslam  r.  Adams  Ex. 
Co.,  6  Bosw  235. 

3  Lawson  Us.  &  Cust.,  96;  Marshall  v. 
Am.  Ex.  Co.,  7  Wis.  1;  73  Am.  Dec.  3S1; 
Houth.  Ex.  Co.  f.  Everett,  27  Ga.  688; 
Kohn  f.  Packard,  3  La.  224;  23  Am.  Dec. 
453;  .Sullivan  v.  Thompson,  99  Mass.  257; 
Weed  V.  Barney,  45  N.  Y.  344 ;  6  Am.  Rep. 
96;  Am.  Ex.  Co.  t'.  Robinson,  72  Pa.  St. 
274;  Baldwin  v.  Am.  Ex.  Co.,  74;  Am. 
Dec.  791;  Maheim  v.  Carr,  62  Me.  473. 
The  rule  as  to  personal  delivery  by  ex- 
press companies  maybe  changed  by  the 
nsaftf  of  the  carrier  at  places  where  the 
amount  of  basinoss  dpnc  does  not  jus- 
tify the  employment  of  delivery  wagons. 
Raldvin  v.  Am.  Ex.  Co.,  supra;  Am. 
Kx.  Co.  V.  Schier,  supra;  Ilaslam  v, 
Adams  Ex.  Co.,  6  Bcsw.  288;  Gulliver  v. 
Adams  Ex.  Co.,  38  111.  603;  Sullivan  v. 
Thompson,  99  Mass.  359;  Packard  v, 
Earle,  113  Mass.  280. 


4  DeMottr.  Laraway,  It  W^nd.  225; 
28  Am.  Dec.  523;  Solomon  r.  Steam  Co., 

2  Daly  104;  Ostranderi'.  Brown,  15  Johns. 
39;  8  Am.  Dec.  211;  Kohn  v.  Packard.  3 
La.  224;  23  Am.  Dec.  4,53;  Yonngt;.  Smith, 

3  Dana,  91 ;  28  Am.  Dec.  57 ;  McAndrew 
r.  Whillock,  52  N.  Y.  40;  11  Am.  Rep. 
657;  Dean  v.  Vaccaro,  2  Head.  4S8;  75 
Am.  Dec.  744;  The  Peytona,  2  Curtis  21; 
Scholes  V.  Ackerland,  15  111.  474;  Bar- 
clay f.  Glide,  2  E.  D.  Smith,  95;  Her- 
mann v.  Goodrich,  21  Wis.  543;  94  Am. 
Dec.  562 ;  Redmond  t'.  Steam  Co.,  56 Barb. 
320;  Dibble  v.  Morgan,  1  Woods,  406; 
Bansemerr.  R.  Co.,  25  Ind.  434;  87  Am. 
Dec.  367;  Morgan  v.  Dibble,  29  Tex.  107; 
94  Am.  Dec.  204;  Shenk  v.  Propeller  Co., 
60  Pa.  St.  109;  100  Am.  Dec.  541. 

s  Goodwin  r.  R.  Co.,  50  N.  Y.  154;  10 
Am.  Rep.  457;  Thomas  v.  R.  Co.,  10  Met. 
972 ;  43  Am.  Dec.  444 ;  Norway  Plains  Co. 
V.  R.  Co.,1  Gray,  263;  61  Am.  Dec.  423; 
Zinn  V.  Steam  Co.,  49  X.  Y.  442;  10  Am. 
Rep.  402;  Hill  Mfg.  Co.  v.  R.  d).,  i04 
Mass.  122 ;  6  Am.  Rep.  202 ;  Leavenworth 
R.  Co.  V.  Maris,  16  Kan.  .333;  Chicago  etc. 
R.  Co.  t'.  Bensley,  69  111.  6.39;  W^ostern 
etc.  R.  (!o.  r.  Camp,  53  Ga.  590;  Cahn  i>. 
U.  Co.,  71  111.  96;  Dresbach  v.  R.  Co., 
57Cal.  462;  Morris  etc.  R.  Co.  v.  Ayres, 

24  N.  J.  L.  303;  80  Am.  Dec.  216;  Wood  r. 
Crocker,  18  Wis.  345;  86  Am.  Dec.  773; 
Bansemerf.  R.  Co.,  25  Ind.  434;  87  Am. 
Dec.  367;  BInmenthal  v.  Brainerd,  .38  Vt. 
402;  91  Am.  Dec.  349;  Francis  t>.  R.  Co., 

25  Iowa,  60 ;  95  Am.  Dec.  769;  McMillan 
V.  R.  Co.,  16  Mich.  79;  93  Am.  Dec.  208; 
Shouk  V.  Steam  Propeller  Co.,  60  Pa.  St. 
JO');  100  Am.  Deo  541;  Tarbell  v.  Koyal 
i^x.  Co.,  110  N.  Y.  170;  6  Am.  St. Rep.  350; 
17  N.  E.  Rep.  721. 

8  Turner  ti.  Huff,  46  Ark.  222;  B6  Am. 
Rep.  S80. 

277 


i 

mm 

I? 


n 
t 


§202 


THE  DUTY  TO  RE-DELIVER. 


[part  U. 


liver  at  their  wliarves  or  wareliouses  at  the  place  of 
destination,  and,  after  having  given  the  consignee  no- 
tice of  their  arrival,  and  the  lapse  of  a  reasonable 
time  for  the  consignee  to  take  them  away,  their  lia- 
bility as  common  carriers,  ceases,  and  they  are  only 
?'able  as  warehousemen  for  the  goods.^  It  is  as  much 
a  part  of  the  contract  of  shipment  that  the  owner  or 
consignee  of  freight  shall  be  ready  at  the  place  of  desti- 
nation to  receive  the  goods,  upon  reasonable  notice  of 
their  arrival,  as  that  the  carrier  shall  transport  them. 
And  the  fact  that  the  consignee's  business  address  was 
stated  in  the  bill  of  lading  does  not  oblige  the  carrier 
to  depart  from  his  known  and  usual  place  of  delivery.- 
Though  the  carrier,  where  he  has  no  warehouse  at 
the  place,  and  is  accustomed  to  make  delivery  by  plac- 
ing the  cars  on  the  side  track,  may  terminate  his  in- 
surance liability  in  this  way;"'  yet  his  liability  does  not 
cease  until  the  cars  have  been  so  placed  that  they  can 
be  unloaded  with  a  reasonable  degree  of  convenience.'' 

§  202.     Delivery  in  Reasonable  Manner.  — Where 
personal  delivery  is  not  required,  the  carrier  must  give 


li'.e.  liable  for  uec;ligence  in  keeping  or 
storing  'hem.  Rowland  v.  Miln,  3  Uolt, 
150;  Redmond  v.  Liverpool  etc.  Steam 
Co.,  46  N.  Y.  5T8;  7  Am.  Uep.  390;  Smith 
r.  R.Co.,27N.  U.  8G;  59  Am.  Deo.  .S64; 
Norway  Plains  Co.  v.  R.  Co.,  1  Gray, 
263;  61  Am.  Doc.  42,S;  Xorthrupr.  R.  Co., 

5  Abb.  Pr.  N.  S.  425 ;  Kremer  i-.  Kx.  Co., 

6  Cold.  356;  Hirsch  v.  Quaker  City,  2 
Uisn.  144;  Fenner  v.  R.  Co.,  44  N.  Y.  505; 
4  Am.  Rep.  709;  Derosia  v.  R.  Co.,  18 
Minn.  1.^"!;  Rice  v.  Uart,  118  Mass.  201; 
19  Am.  Rep.  433;  An.  Ex.  Co.  r.  Wolfe, 
79  111.  430;  The  Uobolink,  6  Saw.  146; 
Chalk  V.  R.  Co.,  85  N.  C.  423;  Hirschflcld 
V.  R.  Co.,  56  Cal.  484 ;  Kennedy  v.  R.  Co., 
74  Ala.  430;  Blnmenthal  v.  ISrainerd,  38 
Vt.  402;  91  Am.  Dec.  349;  Adams  Kx.  Co. 
V.  Darnell,  31  Ind.  20;  99  Am.  Dec.  582; 
Fenner  v.  R.  Co.,  44  N.  Y.  BOS;  4  Am. 

278 


Rep.  769;  Knowles  r.  R.  Co.,  38  Me.  55; 
61  Am.  Dec.  2.S4;  Mobile  etc.  R.  Co.  r. 
Prewett,  46  Ala.  63;  7  Am.  Rep.  686; 
Weedr.  Borncy,  45  N.  Y.  344;  6  Am. 
Rep.  96.  The  carrier  must  provide  con- 
venient and  reasonable  places  in  which 
to  store  his  freight.  Whitney  f.  R.  Co., 
27  Wis.  327;  Thomas  v.  11.  Co.,  10  Mete. 
472 ;  43  Am.  Dec.  444.  And  he  must  keep 
the  goods  in  store  for  the  consignee  a 
reasonable  time  without  additional  re- 
ward. Ransenier  r.  R.  Co.,  25  Ind.  434; 
87  Am.  Dec.  367. 

2  West.  Trans.  Co.  v.  Hawley,  1  Daly, 
227. 

3  South,  etc.  R.  Co.  V.  Wood,  66  Ala. 
167;  41  Am.  Rep.  749;  71  Ala.  216;  46  Am. 
Rep.  309. 

<  Independence  Mills  Co.  v.  R.  Co., 
72  la.  535 ;  34  N.  W.  Uep.  320. 


OH.  XIII.] 


THE  DUTY  TO  RE-DELIVEK. 


§202 


the  owner  due  notice  of  the  arrival  of  the  goods,  in 
order  to  discharge  himself  from  further  liability.*  He 
cannot  get  rid  of  his  insurance  liability  without  such 
notice,  and  the  expiration  of  a  reasonable  time  there- 


1  See  cases  cited,  §  195.  But  the 
carrier  should  have  received  from  the 
consignor  or  consignee  information  as 
to  the  residence  of  the  consignee  or 
ghoald  have  means  of  finding  it  out. 
Pelton  f.  Co.,  54  N.  Y.  214;  l.S  Am.  Rep. 
568;  Fish  r.  Newton,  1  Dufir,  45;  4.^  Am. 
Dec.  649.  Where  the  letter  containing 
the  notice  was  insnfllciently  directed 
by  the  carrier  and  was  not  received  by 
the  consignee,  and  the  goods  in  the 
meanwhile  were  destroyed  the  carrier 
was  held  not  discharged.  Union  Steam. 
Co.  I'.  Knapp,  73  111.506.  .So  where  the 
carrier's  servant  erroneously  informed 
the  consignee  that  they  had  not  arrived. 
Jeffersonvillc  etc.  R.  Co.  v.  Cotton,  29 
Ind.  498;95  Am.  Dec.  656;  McKinney  r. 
Jenett,90N.  Y.  267;  Meyer  r.  R.  Co.,  24 
Wis.  566.  In  the  case  of  railroad  trans- 
portation there  is  a  great  dilference  of 
oi'iniOD  as  to  the  obligation  of  the  car- 
rier to  give  notice.  The  rule  in  Massa- 
chusetts is  that  it  is  not  necessary ;  bat 
that  the  liability  of  the  railroad  as  a 
common  carrier  ends  when  the  goods 
reach  their  destination  and  are  de- 
posited in  a  proper  place  ready  for  the 
consignee  to  call  for  them.  Norway 
Plains  Co.  v.  R.  Co.,  1  Gray  263 ;  Stowe  v. 
R.  Co.,  100  Mass.  455.  And  the  Massa- 
chusetts rule  is  said  by  Mr.  Uutchinson 
(Carr.  370),  to  be  followed  in  Alabamei, 
citing  Ala.  etc.  R.  Co.  v.  Kidd,35Ala. 
2G9;  Mobile  etc.  R.  Co.  t:  Prewitt,  46 
Ala.  63.  California. — Jackson  v.  R.  Co., 
23  Cal.  268.  Georgia.— Southwestern  R. 
(,'0.  f.  Felder,  46  Ca.  433.  ///inots.— Por- 
ter t.R.C,  20  111.  407;71  Am.  Dec.  ?«<:; 
Ciiicagoetc.  K.  Co.  r.  Scott,  42  111.  l,S2; 
End  see  Chicago  etc.  R.  Co.  v.  Pratt,  13 
III.  (App.)  447. /nrfirton.— ISansemer  r.  R. 
Co.,  25  Ind.  4.S4;87  Am.  Dec. ,=!67;  Chicago 
etc.  R.  Co.  r.  McCool,  26  Ind.  140.  Imia— 
Mohrr.  R.  Co.,  40  la.  S79;  Francis  v.  R. 
Co.,  25  la.  60.  North  Carolina.— ^caX  v. 
E.  Co.,  8  Jones  (I..)  482.  Pennsylvania.— 
McCarthy  f.  R.  Co.,  30  Pa.  St.  247.  In 
New  Hampshire  though  no  notice  is  re- 


quired the  consignee  must  be  given  a 
reasonable  time  to  remove  the  goods. 
Moses  V.  R.  Co.,  32  N.  II.  623;  64  Am. 
Dec.  381,  and  this  rule  is  followed. 
(Untch  Carr.  370) ;  in  Kansas,  Leav- 
enworth etc.  R.  Co.  V.  Maris,  16 
Kas.  333.  iCe/itMf%.— Jeflfersonville  etc. 
R.  Co.  f.  Cleveland,  2  Bush.  468,  Louisi- 
ana.— Maignan  v.  R.  Co., 24  La.  Ann.  Z'Ai. 
New  Jtrscj/.— Morris  etc.  R.Co.r.  Ayres,5 
Dutch.  303.  O/ito.—Hirschf.  The  Quaker 
City,  2  Disney  144.  Vermont. — Blumen- 
thai  V.  Brainerd,  38  Vt.  402;  Ouimetti. 
Henshaw,  35  Vt.  6C4;  Winslowi'.  R.  Co., 
42  Id.  700.  Wisconsin.— 'LcmVo  v.  R.  Co., 
39  Wis.  449;  Wood  v.  Crocker,  18  Wis. 
363.  In  New  York  the  rule  is  "that  if 
the  consignee  is  present,  upon  the  arri^ 
val  of  the  goods,  he  must  take  them 
without  unreasonable  delay;  if  he  is  not 
present,  but  lives  at  or  in  the  immediate 
vicinity  of  the  place  of  delivery,  the 
carrier  must  notify  him  of  the  arrival  of 
the  goods,  and  then  he  must  have  a  rea- 
sonable time  to  remove  them;  if  he  is 
absent,  unknown  or  cannot  be  found, 
the  earner  may  store  them ;  and  if,  after 
notice  of  the  arrival  of  the  goods,  the 
consignee  has  had  a  reasonable  oppor- 
tunity to  remove  them,  and  docs  not, 
he  cannot  bold  the  carrier  longer  as  an 
insurer."  Hutch.  Carr.,  §  374,  citing, 
Fenner  r.  R.  Co.,  44  N.  Y.  505;  Hedges 
V.  R.  C,  49  Id.  223;  McDonald  r.  R.  Co., 
34  Id.  497;Spraguer.  R.  Co.,  52  Id.  637; 
Pelton  V.  R.  Co.,  54  I '..  214,  and  this  rule 
says  thesame  authorily(§374)i6foUowed 
in  Michigxin  -'  ackley  v.  R.  Co.,  18  Mich, 
121;  McMillan  v.  R.  Co.,  16  Mich.  79. 
3/mnMo<a,— Pinney  v.  R.  Co.,  19  Minn- 
251;  Derosittf.  R.  Co.,  18  Minn.  133;  see 
Kirk  f.  R.  Co.,  60  N.  W.  Rep.  1084 
(Minn).  And  this  is  the  English  rule 
also.  Rrowne  Carr.  (Cap.  VIII).  The 
New  Hampshire  rule  is  followed  in  Mis- 
souri. Eaton V.  R.  Co.,  12  Mo.  (App.) 
386;  Rankin  f.  R.  Co.,  55  Mo.  167.  See 
Gashweilerr.  R.  Co.,  83  Mo.  112;  6  Am. 
Rep.  162.    In  a  late  case   in  Arkansas 

279 


a 


Mil 

3 

O 

■Mf 


1 


ii 


§203 


THE  DUTY  TO  RE-DELIVER. 


[part  II. 


1*"'  M 


•"< 


after  in  which  to  enable  the  consignee  to  come  and 
get  the  goods.*  A  "reasonable  time"  is  such  as  would 
enable  one  residing  in  the  vicinity  of  the  place  of  de- 
livery, and  informed  of  the  probable  time  of  arrival, 
to  inspect  and  remove  the  goods  during  business 
hours.- 

§  203.  Delivery  at  Proper  Time. — Where  per- 
sonal delivery  is  required,  it  must  be  made  at  a  rea- 
sonable hour,  i.  €.,  in  the  case  of  a  consignee  who  is  en- 
gaged in  business  within  business  hours,  and  so  where 
the  consignee  is  notified  to  come  and  get  the  goods, 
he  must  be  given  the  opportunity  during  ordinary 
working  hours.^  Goods  cannot  be  landed  and  th  > 
consignee  required  to  accept  them  or  take  them  away 
on  Sunday  or  upon  any  legal  holiday  on  which  labor 
is  forbidden.* 


after  a  critical  review  of  the  authorities, 
the  Supreme  Court,  say:  (Missouri  Pac. 
U.  Co.  V.  Nevill  30  S.  W.  Rep.  425): 
"Counsel  for  appellant  cite  Alabama 
and  Pennsylvania  as  supporting  the 
Massachusetts  mle,  bat  an  examination 
of  the  cases  of  Railroad  Co.  v.  McGnire, 
79  Ala.  395,  and  Railroad  Co.  v.  Oden,  80 
Ala.  39,  and  the  case  of  Steamship  Co.  v. 
Smart,  107  Pa.  St.  492,  will  discover  that 
Alabama  end  Pennsylvania  are  in  line 
with  the  New  Hampshire  rule  as  to  the 
consignee  having  a  reasonable  time  in 
which  to  remove  the  goods,  during 
which  time  the  liability  of  the  carrier 
as  an  insurer  continues.  Counsel  for 
appellee  are  likewise  mistaken  in  put- 
ting Tennessee  in  the  New  Hampshire 
column.  See  Butler  v.  Railroad  Co.,  8 
Lea  32.  But,  whatever  rule  we  adopt, 
wo  will  be  but  going  upon  a  well-beaten 
path,  and  following  in  the  footsteps  of 
eminent  jurist-:,  it  is  difllcnlt  to  de- 
termine where  lies  the  weight  of  au- 
thority amid  such  respectable  conflict. 
But,  considering  the  broad  principles 
of  public  policy  and  convenience  upon 
which  the  common-law  liability  of  the 
carrier  is  made  to  rest,  the  doctrine  of 
tbe  New  Hampahii'e  court  commends 

280 


itself  to  our  favor.  We  think  it  em- 
bodies the  better  reason.  Without  en- 
tering upon  a  discussion  of  these  prin- 
ciples (for  we  could  not  hope  to  add 
anything  new)  we  simply  announce  our 
approval  of  the  New  Hampshire  case  as 
applicable  to  the  undisputed  facts  of 
this  case.  This  doctrine  is  supported, 
we  believe,  by  a  majority  of  the  text 
writers,  as  well  as  the  adjudicated 
cases." 

1  Faulkner  v.  Hart,  82  N.  Y.  413 ;  37  Am. 
Rep.  574 ;  Mills  v.  R.  Co.,  45  N.  Y.  622 ;  6  Am. 
Rep.  152;  Bell  v.  R.  Co.,  6  Mo.  (App.)  363; 
Redmond  v.  Liverpool  etc.  Steam  Co., 
46  N.  Y.  578 ;  7  Am.  Rep.  390 ;  Winslow  r. 
R.  Co.,27Vt.  700;  1  Am.  Rep.  365;  Graves 
V.  Hartford  Steam  Co.,  38  Conn.  143;  9 
Am.  Rep.  369. 

2  Bell  V.  R.  Co., 6 Mo.  (App.)  363;  Leav- 
enworth etc.  R,  Co.  V.  Maris,  16  Kas.  333; 
Weod  I'.  Crocker,  18  Wis.  346 ;  86  Am. 
Dec.  77.3.  Louisville,  etc.,  E.  Co.  v.  Mc- 
Gnire, 79  Ala.  395 ;  Rice  v.  Hart.US  Mass. 
201;19  Am.  Rep.  433. 

3  Browne  Carr.,§  286. 

4  Hutch.  Carr.,  S  362,  citing  Richard- 
son V.  Goddard,  23  How.  28;  Ruasell 
Mantg.  Co.  V.  Steam  Co.,  60  N.  Y.  12L 


OH.  XIII.] 


THE  DUTY  TO  RE-DELIVER. 


§204 


§  204.    Delivery  within  Reasonable  Time. — The 

place  is  not  only  ji  matter  of  importance,  but  the  time 
is  an  element  of  the  contract.  Goods  are  not  intrusted 
to  a  carrier  that  he  may  deliver  them  at  his  own  good 
pleasure,  but  that  he  may  deliver  them  in  such  time  as, 
looking  at  the  length  of  his  ordinary  journey,  the 
mode  of  the  conveyance,  and  the  circumstances  of 
which  the  owner  might  be  cognizant^  before  he  in- 
trusted his  goods,  shall  be  deemed  reasonable;^  for  a 
carrier  is  bound  to  know  when  he  accepts  property  for 
shipment,  that  he  has  or  can  obtain  facilities  for  its 
transportation  within  a  reasonable  time.^  The  ques- 
tion as  to  what  is  to  be  considered  a  reasonable  time 
must  be  looked  at  in  relation  to  all  other  circum- 
stances of  the  case — the  weather,*  the  state  of  the 
roads,^  the  season  of  the  year,  and  other  matters  of  a 
like  sort.  It  is  generally  held  that  delay  in 
delivery  is  excused  by  the  violence  and  intimi 
dation  of  striking  employew  of  the  carrier.^  The 
carrier  is  not  an  insurer  in  this  respect;  as  to 
time,  he  is  answerable  only  for  want  of  due  diligence, 
and  may  excuse  delay  by  showing  accidents  that  are 
not  inevitable,  or  produced  by  the  act  of  God.^  The 
carrier  is  liable  for  a  negligent  delay  in  delivering  the 
goods.*     It  is  no  defense  that  the  railroad  needed  its 


1  Browne  Carr,  §  232. 

2  Peterson  ti.  Case,  21  Fed.  Rep.  885. 

3  Thomas  v.  R.  Co.,  63  Fed.  Rep.  200. 

*  A  snow  storm  for  example  obstract- 
ing  the  road.  Prnitt  v.  R.  Co..  62  Mo. 
627. 

»  Browne  Carr,  §  232.  Feet  v.  R.  Co., 
20  Wis.  594 ;  91  Am.  Dec.  446. 

s  Geismer  v.  Lake  Shore  etc.  R.  Co., 
102  N. Y.  663 ;  65  Am.  Rep.  837 ;  7  N.E.  Rep. 
828;  Haas  v.  Eas.  City  R.  Co.,  7  S.  E. 
Kep.  629  (Ga.) ;  Pitts,  etc.  R.  Co.  v.  Hazen, 
84  111.  36 ;  25  Am.  Rep.  423 ;  Lake  Shore  R. 
Co.  V.  Bernett,  89  Ind.  457;  Bartlett  v. 
Pittsburgh  R.  Co.,  94  Ind.  281;  Little  v. 


Fargo,  43  Hnn.  233;  Int.  etc.  R.  Co.  u. 
Tisdale,  11  S.  W.  Rep.  900;  Ind.  etc.  R. 
Co.  t>.  Jantgen,  10  111.  (App.)  295;  Pitta, 
etc.  R.  Co.  V.  Hollowell,  65  Ind.  188; 
Pitts,  etc.  R.  Co.  V.  HoUenback,  65  Ind. 
188;  32  Am.  Rep.  63. 

7  Parsons  v.  Hardy,  14  Wend.  216;  28 
Am.  Dec.  521;Strohn  V.  R.  Co.,  23  Wis. 
126 ;  99  Am.  Dec,  114 ;  Empire  Trans.  Co. 
f.  Wallace,  68  Pa.  St.  302 ;  8  Am.  Rep.  178. 

8  Rathbone  v.  Neal,  4  La.  Ann.  563; 50 
Am.  Dec.  579;  Michigan  etc.  R.  Co.  v. 
Day,  20111.  376;  71  Am.  Dec.  2T8;  Ben- 
nett r.  Byram,  38  Miss.  17;  75  Am.  Dec. 
90;  Rawson  v.  Holland,  69  N.  Y.  611.    A 

281 


< 


••41 


J7 

01 


205 


TIIK  DUTY  TO  RE-DELIVER. 


[part  II. 


rolling  stock  for  the  purpose  of  conveying  passengers,^ 
or  that  the  delay  was  caused  by  the  lack  of  proper  ap- 
pliances for  transportation;''  or  on  the  ground  of  an 
unexpected  press  of  business;^  or  that  a  bridge  on  its 
line  broke  down,  so  that  it  was  forced  to  send  the  goods 
by  another  route.^ 

Where  a  carrier  omits,  for  an  unreasonable  time  to 
deliver  property  intrusted  to  him  for  transportation, 
and  then  offers  to  deliver  it,  the  owner  cannot  refuse 
to  receive  it,  and  proceed  against  the  carrier  for  its 
conversion,  though  the  latter  is  liable  for  damages  for 
the  delay.'"' 

§  205.  Delivery  vmder  Special  Contract;.— In- 
structions of  Shipper. — The  carrier,  if  the  mode  of 
delivery  has  been  made  a  matter  of  special  contract, 
must  deliver  in  the  way  prescribed,  and  must  likewise 
follow  the  instructions  of  the  shipper  concerning  the 
deliver}'.*'  If  the  goods  are  sent  C.  O.  1).,  /.  c,  not  to  be 
delivered  until  paid  for,  and  the  carrier  delivers  them 
without  receiving  the  money,  he  assumes  the  respon- 
sibility that  the  price  will  be  paid.''  He  is  also  obligetl 
to  give  the  consignee  a  reasonable  vime  in  which  to 
obtain  the  monej^,  and  must  not  at  once,  after  they 
are  tendered,  and  the  money  not  ready,  return  them  to 


i 


delay  of  seventy-fonr  days  beyond  the 
usual  time  of  delivering  freight  has 
been  held  negligent.  St.  Lonis  etc.  R. 
Co.  V.  Heath,  41  Ark.  476.  So  a  delay  of 
twenty-tonr  hours  at  a  way  station. 
Ormsby  ti.  R.  Co.,  2  McCrary  48.  So  a  de- 
lay of  twelve  days.  Michigan  etc.  R. 
Co.  V.  Dhy,  20  111.  .S75 ;  71  Am.  Dec.  278.  A 
delay  of  four  days.  St.  Clair  v.  U.  Co., 
45  N.  W.  Rep.  570. 

1  Ormsby  v.  R  Co.,  2  McCrary  48. 

2  Tucker  v.  R  Co.,  50  Mo.  385. 

3  Marine  Ins.  Co.  v.  R.  Co.,  41  Fed. 
Rep.  643. 

*  Guinn  v.  R.  Co.,  20  Mo.  App.  453. 

282 


a  Scovill  V.  Griffith,  12  N.  Y.  '-•yi 
e  Michigan  etc.  R.  Co.  v.  L'uy  ,■ 
375 ;  71  Am.  Dec.  278 ;  Tbe  CUun  oi.  ."•> 
Fed.  Rep.  621;  Strahorn  v.  Vpi.ii  I-  ^c 
Yard  Co.,  43  111.  424;  82  Am.  Diuj  ■; 
Wright  t'.R.  Co.,  8  Phila.  19;  McLwan 
1'.  R.  Co.,  33  Ind.  368;  6  Am.  Rep.  216; 
Houston  etc.  R.  Co.  v.  Adams,  49  Tex. 
78;  30  Am.  Rep.  117. 

7  Tooker  D.  Gorman,  2  Hilb.  71;  Am. 
IGx.  Co.  v.  Haire,  21  Ind.  4 ;  83  Am.  Dec. 
834;  Am.  Ex,  Co.  V.  Lessem,  89  111.  312; 
Murray  V.  Warner,  65  N.  H.  646;  Union 
etc.  R.  Co.  V.  Riegel,  73  Pa.  St.  72. 


T 


CH.  XIII.] 


THE  DUTY  TO  RE-DELIVER. 


§205 


the  consignor.^  On  general  principles  the  carrier  be- 
ing the  shipper's  agent,  must  follow  his  directions  in 
all  things,  and  if  he  has  made  a  special  contract,  he 
must  perform  the  contract  strictly,  according  to  its 
terms.  The  rule  is,  that  if  he  attempt  to  perform  his 
contract  in  a  manner  different  from  his  express  under- 
taking, he  becomes  an  insurer  for  the  absolute  de- 
livery of  the  goods  and  can  not  avail  himself  of  any 
exceptions  made  in  his  behalf  in  the  contract." 

Where  the  carrier  has  agreed  to  carry  the  goods  to 
their  destination  within  a  fixed  time,  he  must  i)er- 
form  his  contract,  and  no  obstruction  of  any  kind,  or 
even  impossibility,  will  excuse  him.^  This  is  only  a 
particular  application  ol  he  general  law  of  contracts.* 
The  contract  may  be  implied  as  well  as  express,  as 
where  the  carrier  accepts  goods,  knowing  that  they 
are  intended  to  be  at  the  place  of  destination  on  a 
given  day.^ 

The  owner  may  change  his  mind  with  regard 
to  the  destination  of  the  goods.  As  it  was  he 
who  gave  them  a  destination  in  the  hands  of  the  car- 
rier, he  may,  if  he  chooses,  countermand  his  first  order. 
Such  a  countermand  will,  of  course,  justify  a  non-de- 
livery upon  the  part  of  the  carrier,  and  may  be  given 
at  any  time  during  the  transit."    . 


1  Great  West.  U.  Co.  v.  Crouch,  3  II.  & 
N.  18.S. 

2  Merrick  t:  Webster,  3  Mich.  268 :  Mn- 
ghee  V.  U.  Co.,  45  N.  Y.  514;  liDStwick  v. 
U.Co.,  45  N.  Y.  712;  Danseth  r.  Wade,73 
111.  285 ;  Goddard  v.  Mallory,  62  ISarb.  19 ; 
Hazin i>.  Steamship  Co. ,3  Wall,  Pr.  22; 
Crosby  t>.  Fitch,  12  Conn.  410;  Kead  t'. 
Si)aulding,  5  Bosw.  395;  30  N.  Y.  630; 
Hand  V.  Itayne6,4  Whart.  204;  Cassilay 
V.  Yonnf?,  4  B.  Mon.  265;  Stewart  t>. 
Merch.  Disp.  Trans.  Co.,  47  Iowa,  269; 
Kobin.son  v.  Merch.  Disp.  Trans.  Co.,  45 
Iowa,  470 ;  Fatman  v.  It.  Co.,  2  Disney, 248 ; 
Goodrich  v.  Thompson,  4  Kob.  76;  44  N. 
Y.  324;  Johnson  v.  U.  Co. ,  31  Barb.  196; 
33  N.  y.  CIO. 


^  Place  r.  ruion  Exp.  Co.,  2  Hilt.  19; 
Deminp  !•.   11.   Co.,   48  N.  II.  455;  2  Am. 
Uep.   267;  Parmleo  v.  Wilks,  22    Barb. 
639;  Harmony  f.  Bingham,  12  N.   \'.  99; 
62  Am.  Dec.  142. 

4  See  Lawson  Cont.  §  420. 

5  Phila.  etc.  R.  Co.,  v.  Lehman.  56  Ind. 
209;  Grindle  i\  Express  Co.,  67  Me.  817; 
24  Am.  Ucp.  31 ;  Chicago  etc.  K.  Co.  v. 
Thrapp,  5  III.  (App.)  502;  See  United 
States  E.v.  Co.  v.  Root,  47  Mich.  231 ; 

6  Browne,  Carr.  §267.  The  same  is  tme 
also  of  the  consignee.  London  etc,  B. 
Co.  v.  Baitlett,  7  H.  &  N.  400. 

283 


< 

•a 


m 


1 

■.:! 


ST^i! 


§207 


THE  DUTY  TO  RE-DELIVER. 


[part  II. 


§  206.  Delivery  to  Wrong  Person.  —The  duty 
of  the  carrier  is  imperatively  to  deliver  to  the  right 
person,  and  no  amount  of  care  will  excuse  him  from 
delivering  to  a  persion  other  than  the  right  one.*  But 
it  has  been  held  that  where  a  carrier  delivers  goods 
according  to  their  address,  he  is  not  responsible  for  the 
fact  that  the  person  to  whom  they  are  addressed  rep- 
resented himself  to  the  seller  to  be  another  person  of 
the  same  name,  and  that  the  seller  is  swindled  out  of 
his  goods.2 


§  207.     Duty  of    Carrier  to  Notify  Consignor.— 

Where  the  consignee  has  refused  to  take  the  goods,  or 
cannot  be  found,  it  seems  that  the  carrier's  duty  is 
at  an  end  after  he  stores  them  to  be  called  for,  and 
that  he  is  not  bound  to  notify  the  consignor,  unless  the 
case  was  one  which  required  personal  delivery  or  the 
giving  of  nolice  of  arrival;  and  even  then  he  is  not 


1  Howard  v.  Steam  Co.,  83  N.  C.  158; 
35  Am.  Rep.  671;  Elav.  Express  Co.,  29 
Wis.  611;  9  Am.  Rep.  619;  Adams  v. 
Blankenstein,  2  Cal.  413;  66  Am.  Dec. 
360;  South.  Ex.  Co.  v.  Crook,  U  Ala.  468; 
4  Am.  Rep.  140;  McEntee  v.  N.  J.  Steam 
Co.,  45  N.  Y.  34;  6  Am.  Rep.  28;  The 
Hnntress,  Davies,  82;  Am.  Ex.  Co.  v. 
Stack,  29  Ind.  27;  Am.  Ex.  Co.  v.  Milk,  73 
111.  224;  Little  Rock  etc.  R.  Co.  v.  Glide - 
well,  89  Ark.  487;  Hayes  v.  Wells.  23 
Cal.  185;  83  Am.  Dec.  89;  Shenk  r.  Tro- 
peller  Co.,  GO  Pa.  St.l09;  100Am.Dec541; 
Penn.  R.  Co.  v.  Stern,  119 Pa.  St.  24;  Price 
V.  R.  Co.,  50  N.  Y.  213;  10  Am.  Rep.  475; 
Stephcuson  v.  Hart,  4  Ring.  476;  San- 
qner  v.  R.  Co.,  16  C.  B.  163 ;  Wernwag  v. 
R.  Co.,  117  Pa.  St.  46;  Fnrman  v.  R.  Co., 
106N.Y.  679;  Claflin  r.  R.  Co.,  7  Allen, 
341 ;  McCallongh  v.  McDonald,  91  Ind. 
240;  Merchants  Dis.  Co.  t<.  Merriam,;ill 
Ind.  6;  11  N.  E.  Rep.  954;  Gaillaame  v. 
Hamburg  etc.  Packet  Co.,  42  N.  Y.  212; 
lAm.  Rep.  612;  Viner  v.  Steam  Co.,  50 
N.  Y.  23;  South.  Ex.  Co.  v.  Van 
Meter,  17  Fla.  783;  36  Am.  Rep.  107; 
UcEwan  V',  R.  Co.,  33  Ind.  368;  5  Am. 

284 


Rep.  216.  "Common  carriers  delirer 
property  at  their  peril,  and  must  take 
care  that  it  is  delivered  to  the  right  per- 
son; for  if  thedelivery  be  to  the  wrong 
person,  either  by  an  innocent  mistake 
or  through  fraud  of  third  persons,  as 
upon  a  forged  order,  they  will  be  re- 
sponsible, and  the  wrongful  delivery 
will  be  treated  as  a  conversion."  Mc- 
Entee V.  N.  J.  Steam  Co.  supra.  Loss  of 
goods  by  a  wrong  delivery,  is  a  conver- 
sion for  which  the  carrier  is  liable  to  ac- 
count at  the  full  value  of  the  goods, 
this  mode  of  loss  not  being  within  the 
terms  of  the  special  contract  lixing  a 
conventional  value  upon  the  goods  at 
the  time  of  shipment  in  consideration  of 
the  rate  of  freight  being  reduced.  Sa- 
vannah etc.  R.  Co.  V.  Sloat,  20  S.  0. 
Rep.  219  (Ga.). 

2  The  Drew,  15  Fed.  Rep.  826;  Wilson 
V.Adams  Ex.  Co.,  27  Mo.  (App.)  360; 
Samuel  v.  Cheney,  135  Mass.  27s ;  46  Am. 
Rep.  467;  Dunbar  v.  R.  Co.,  110  Mass.  26; 
14  Am.  Rep.  676.  Rut  see  Winslow  v.  R, 
Co.,  42  Vt.  700;  1  Am.  Rep.  866. 


CH.  XIII.] 


THE  DUTY  TO  RE-DELIVER. 


§209 


under  any  obligation  to  notify  the  consignor,  unless 
he  has  been  informed,  or  has  reason  to  believe  that 
the  goods  are  the  property  of  the  consignor.  Tne 
carrier  has  always  the  right  to  presume  that  the  goods 
belong  to  the  consignee  unless  he  is  otherwise  in- 
formed, or  is  bound  to  infer  otherwise  from  the  circum- 
stances.^ 


§  208.  Right  to  Examine  Goods. — The  carrier 
should  giv^  the  consignee  the  opportunity  of  examin- 
ing the  goods  before  he  accepts  them.^  Mr.  Browne,  in 
summing  up  the  rules  as  to  delivery  by  the  carrier, 
says:  "The  liability  of  a  carrier  as  such,  continues  until 
the  goods  are  ready  to  be  delivered  at  their  place  of 
destination,  and  the  consignee  has  had  a  reasonable 
opportunity,  during  the  hours  when  such  goods  are 
usually  delivered,  in  which  to  examine  them  so  far  as 
to  judge  of  their  outward  appearance,  and  to  remove 
the7Ji."=^ 

^  209.     Claims  of  Ownership  by  Third  Party.— 

Where  the  goods,  while  still  in  the  hands  of  the  carrier, 
are  claimed  by  some  one  not  the  bailor  who  asserts 
his  ownership,  and  the  carrier,  under  such  circum- 
stances, delivers  the  goods  to  their  actual  owner,  will 
that  terminate  his  liability  to  the  bailor,  which,  under 
ordinary  circumstances,  is  only  discharged  by  delivery 
to  the  consignee?  This  question  has  been  much  dis- 
cussed and  different  opinions  have  been  expressed. 
The  better  view  seems  to  be  that  while  a  carrier  can- 


< 


-1 


0 


1  Hutch.  Ciirr.,§§  387, 388; Sweet f.  Bar-       ham  r.  Lamping,  26  Pa.  St.  .S40;  67  Am. 
ney,23  N.  Y.  S.'iS ;  Weed  f.  Barney,  46 N.  Y.       Dec.  418. 


.S44;  6  Am.  Rep.  79;  Merchant's  etc. 
Trans.  Co.  i».  Hallock,  64  111.284;  Will- 
iams V.  Holland,  22  IIow.  Pr.  137;Bing. 


2  Hutch.,  Carr.,  §  39,H;  Lyon  v.  Hill,  46 
N.Y.  4a ;  88  Am.  Dtc.  189;  Uorrick  r.  Gal- 
lagher, 60  n.-iib.  5G6. 

3  IJrowne,  Carr.,  §  2.S,S. 

285 


r 


209 


THE  DUTY  TO  RE- DELIVER. 


[part  II. 


.!#"• 


I'ot,  any  more  than  an  ordinary  bailee,  dispute  his 
bailor's  title,  this  should  be  restricted  to  cases  where 
the  adverse  claim  is  not  asserted  by  the  real  owner,  but 
is  asserted  by  the  carrier,  of  his  own  mere  motion,' 
but  that  where  the  adverse  title  is  asserted  by  another, 
and  the  carrier  forbidden  to  deliver  them  by  him,  he 
may  set  up  this  title  against  the  bailor.-  Where  a  carrier 
has  received  goods  from  a  wrongful  owner,  and  has 
delivered  them  to  the  consignee  befv-re  he  is  made 
aware  that  the  bailor  was  not  the  rightful  owner,  he 
cannot,  of  course,  be  held  liable  to  the  latter.  Nor 
does  he,  by  mere  actual  or  constructive  knowledge  of 
the  right  of  a  third  party,  thereby  become  a  trustee 
for  that  third  party,  as  against  the  consignee;  and 
even  under  such  circumstances,  and  with  such  infor- 
mation, he  will  not  be  liable  if  he  delivers  the  goods 
to  the  consignee,  unless  he  does  so  under  circumstances 
of  fraud.^  The  carrier  holds  for  his  employer,  and  if 
a  third  party  sets  up  a  claim,  he  will  admit  it  and  de- 
liver the  goods  to  him  at  his  peril.     The  proper  course 


.   hi'if 


1  "No  matter  how  tortions  or  trauda- 
lent  may  have  been  the  means  by  which 
the  bailor  acquired  possession  of  the 
property,  nor  how  entirely  destitute  of 
all  riglit  to  it  as  against  the  true  owner, 
the  bailee  cannot  legally  withhold  it 
from  him  unless  the  owner  has  set  up 
hia  claim  and  the  bailee  has  yielded  to 
it;  and  if  the  carrier  or  other  bailee, 
whilst  still  holding  possession  of  the 
property,  would  defend  against  the 
claim  of  his  bailor  by  setting  up  the  par- 
amount title  of  anotht'r,  he  must  at  least 
show  that  it  is  done  by  his  authority 
and  on  his  behalf.  Otherwise  the  bailee 
might  avail  himself  of  the  title  of  a 
third  person  which  might  never  be  as- 
serted by  such  person,  and  thus  be  en- 
abled to  keep  the  property  for  himself 
without  a  shadow  of  title,  when  by  his 
contract  he  had  undertaken  '.o  return  it 
to  the  bailor  or  to  deliver  it  according 

286 


to  his  directions.  But  so  soon  as  he  has 
restored  it  to  the  person  to  whom  it  be- 
longs, or  has  agreed,  upon  his  demand, 
to  hold  it  for  him,  the  estoppel  ceases, 
because  the  original  bailment  has  come 
to  an  end  by  that  which  is  equivalent  to 
an  eviction  by  title  paramount."  Hutch. 
Carr.,§40S. 

2  Sheridan  i'.  New  Quay  Co..  i  C.  B. 
(N.  S.)  618;  Hutch.  Carr.  §  4Wi,  citing 
The  Idaho,  9.S  U.S.  575;  11  Blatch.  218; 
Rosenfleld  r.  Express  Co.,  1  Woods 
131 ;  West.  Trans.  Co.  v.  Barber,  58  N.  V. 
544;  Lowremore  V.  Berry,  19  Ala.  l.W; 
Marker  v.  Dement,  9  Gill  7;  Floyd  v. 
Bovard,  6  Watts  &  S.  75;  King  v.  Rich- 
ards, 6  Whart.  418;  Bates  v.  Stanton,! 
Duer.  79.  The  contrary  opinion  in  Story 
Bail.,  §  582,  is  criticised  in  the  English 
case  cited  above. 

3  Browne  Carr.  §  276. 


OH.  XIII.] 


THE  DUTY  TO  HE-DELIVER. 


§210 


is  for  the  carrier  to  file  a  bill  of  interi)leader  to  ju- 
dicially ascertain  who  is  the  true  ownev;^  or  he  maj' 
deliver  them  to  the  one  who  appears  to  him  to  have  the 
title  upon  being  indemnified  by  him  against  loss  in  case 
he  should  be  mistaken.- 

The  carrier  must  give  p»rompt  notice  to  the  consignor 
or  owner  of  the  goods,  if  known,  of  such  seizure,  or  of 
the  institution  of  legal  proceedings  against  the  goods, 
in  order  that  he  may  have  the  opportunity  of  showing 
his  title  to  the  goods,  or  of  protecting  his)  interest  in 
them^ 

And  the  carrier  may  refuse  to  deliver  until  the  per- 
son making  demand  for  the  goods  produces  evidence 
of  his  authority,  or  identifies  himself  as  the  consignee.* 
But  his  refusal  on  this  account  must  be  in  good  faith 
and  he  must  not  detain  them  an  unreasonable  time  on 
this  pretext,  and  what  is  a  reasonable  time  is  a  ques- 
tion for  the  jui'y.'' 

§  210.  Stoppage  in  Transitu. — The  exercise  of 
the  right  of  stoppage  in  troiisitii  affords  a  justification 
for  non-delivery.  This  right  is  that  w-hich  is  vested  in 
an  unpaid  vendor  of  goods,"  to  stop  them  while  they 
are  on  their  way  to  the  vendee,  and  before  they  have 
actually  come  into  his  possession.  This  is  done  by 
the  vendor  or  consignor  giving  notice  to  the  carrier  to 
hold  the  goods,  and  as  the  carrier  is  obliged  to  obey 


0 


■m 

3 
3 


3> 


'5 


J  Wilson  t'.  Anderton,  1  B.  &  Ad.  450. 

2  Ilutch  Can-,  §  407. 

8  Hatch  Carr.  citing  Ohio  etc.  R.  Co.  v. 
Tohe,  51  Ind.  181;  19  Am.  Rep.  727; 
Blivin  V.  R.  Co.,  36  N.  Y.  403;  3fi  Barb. 
188;  Mierson  r.  Uope,  2  Sweeney,  561. 

4  McEntee  v.  Steam  Co.,  46  N.  Y.  34; 
6  Am.  Rep.  28';  Dwyer  v.  R.  Co.,  .69  Tex. 
707;  7  S.  W.  Rep.  604. 


«  McEntee  v.  Steam  Co.,  supro;  Bait, 
etc.  R.  Co.  V.  I'nmphrey,  59  Md.  390; 
Hutch.  Carr.,  §  408,  citing  Solomons  c. 
Dawes,  1  Esp.  83;  Green  v.  Dnnn,  3 
Camp.  216;  Dnnlap  v.  Hunting,  2  Denio, 
643;Holbrook  v.  Wight,  24  Wend.  169; 
Rogers  r.  Weir,  34  N.  Y.  463. 

B  For  certain  reasons  which  are  not 
relevant  here,  bat  rather  to  a  text  book 
on  the  Law  of  Sales. 

287 


fjr — " 


§211 


THE  DUTY  TO  IlE-DELIVER. 


[part  II. 


this  notice,*  it  follows  that  it  is  a  good  defense  to  any 
claim  upon  the  carrier  by  the  vendee  for  non-delivery. 

§211.  Who  may  Sue  for  Loss  or  Injury  to 
Goods.  — In  almost  every  case  there  are  two  parties 
interested  in  the  safe  custody  and  delivery  of  the  goods 
by  the  carrier,  /.  r.,  the  consignor  or  the  sender,  and  the 
consignee  or  the  receiver,  and  it  would,  therefore,  seem 
not  easy  to  deternilue  whether  the  right  is  in  the  con- 
signor or  consignee  to  bring  the  action  for  loss  or 
damage  to  the  goods  while  they  were  in  the  custody 
of  the  carrier.  The  carrier  ninst  be  liable  to  one 
party  or  the  other;  and  if  tlie  wrong  party  were  to 
recover  against  him,  he  would  be  liable  to  be  harassed 
again.-  Hence,  the  importance  of  coming  to  some 
definite  understanding  as  to  the  rights  of  each;  for  it 
has  been  held  that  where  the  property  in  goods  has 
passed  to  a  consignee,  it  is  no  defense  to  an  action  by 
him  against  the  carrier  for  the  loss  that  the  consignor 
has  claimed,  and  that  the  carrier  has  boiui  fide  paid 
him  the  amount  of  the  loss.''  The  principle  of  the  law 
of  sales,  that  delivery  of  the  goods  to  the  carrier  by 
the  vendor  vests  the  title  and  ownership  prima  facie, 
in  the  vendee  or  consignee,  makes  the  carrier  presump- 
tively the  agent  of  the  consignee,^  and  there-fore,  in  an 
action  against  a  carrier  for  such  loss  or  damage,  the 


1  Allen  V.  R.  Co.,  79  Me.  327;  1  Am.  St. 
Hep.  ,S10;  9  Atl.  Kep.  895. 

2  Browne.  Carr.  §  595. 

3  Browne  Carr,  §  595  citing  Coombs 
r.  R.  Co.,  3  H.  &  N.  1 ;  27  L.  J.  Exch.  269; 
West.  etc.  R.  Co.  r.  Kelly,  1  Head,  158. 

<  Tied.,  Sales,  §  95,  citing  Bradford  v. 
Marbury,  12  Ala.  520;  4G  Am.  Dec.  264; 
Hobart  v.  I.ittlefleld,  13  R.  I.  341;  Lud- 
low r.  Browne,  1  Johns.  115;  Dunlopt?. 
Lambert,  6  Clark  &  F.  600;  Hunter  v. 

•    288 


Wright,  12  Allen,  648;  Garland  v.  Lane, 
46  N.  n.  245;  Thompson  v.  Baltimore 
etc.  R.  Co.,  28  Md.  396;  Burton  r.  Baird, 
44  Ark.  556;  State  v.  Carl,  43  Ark.  353; 
Pilgrcen  t-.  State,  71  Ala.  ,=(68;  State 
V.  O'Neill,  58  Vt.  140;  56  Am.  Rep. 
657;  Sarbecker  v.  State,  65  Wis.  171;  B6 
Am.  Rep.  624;  Fragano  v.  Long,  4  Barn. 
&  C.  219;  Dawes  t'.  I'eck,  8  T.  R.  .330; 
Johnson  v.  Dodgson,  2  M.  *  W.  653; 
Merediths.  Meigh,  7  £.  &  B.  364;  22  L.J. 


on.  XIII.] 


TIIK  DUTY  TO  llE-DELIVER. 


§211 


vendee  or  consignee  is  generally  the  proper  plaintiff.^ 
And  this  miust  be  also  true  where  the  particular  car- 
rier has  been  selected  by  the  consigUv'e  himself,  for 
«u(h  currier  has  then  become  his  special  agent.-  But 
as  the  real  test  is  which  of  the  two,  the  consignor 
or  consignee,  has  taken  the  risk  of  the  goods  whih'  iu 
the  carrier's  hands,  it  follows  that  the  consignor  is  the 
real  party  in  interest: — 

1.  Where  by  agi'eement  between  consignor  and  con- 
signee the  former  assumes  the  risk  until  they  reach 
the  consignee's  hands,  as  where  the  consignor  under- 
takes to  deliver  them  at  a  particular  ])lace.^ 

2.  Where  he  (the  consignor),  has  made  the  contract 
of  carriage  Avith  the  carrier,  though  in  this  case  the 
recovery  will  be  for  the  benefit  of  the  consignee,  if  he 
was  the  real  owner  of  the  goods.^  This,  however, 
would  not  be  the  rule  in  the  Code  States  where  the 
action  is  required  to  be  brought  b\'  the  real  party  in 
interest. 

3.  Consequently,  a  mere  servant  or  agent  with 
Avliom  a  contract  is  made  on  behalf  of  another,  and 
who  has  no  dirwt  beneficial  interest  in  the  transac- 
tion, cannot  support  an  action  thereon;    unless  the 


Q.  n.  401 ;  Hart  v.  Unsh,  E.  B.  *  E.  494 ;  27 
U  J.  Q.  U.  271;  Smith  v.  Hudson,  6  1$.  & 
S.  431 ;  H4  L.  J.  Q.  M.  146 ;  Cnsack  v.  Hob- 
iiisoii,  1  B.  &  S.  209;  30  I..  J.  Q.  H.  261; 
Norman  v.  rhillips,  4  M.  &  W.  277 ;  Com. 
f.  Farnnm,  114  Mass.  2G7;  Janney  t>. 
Slecper,30 Minn. 483;  Garbracht  r. Com., 
96  I'a.  St.  449;  42  Am.  Uep.  .'550;  Finch  v. 
Mansfield, 97  Mass.  89;  Abberger  f.  Mar. 
tin,  102  Mass. 308;  Brockway  r.  Maloney, 
102  Mass.  308;  Dolan  v.  Green,  110 Mass. 
322;  Frank  t».  Hoey,  128  Mass.  263;  Teg- 
ler  V,  Shipman,  33  Iowa,  194 ;  U  Am.  Kep. 
118;  Shnenfeldt  v.  Junkerman,  20  Fed. 
Kcp.  357;  Hill  v.  Spear.  50  N.  U.  253;  9 
Am.  Hep.  205;Boothby  r.  PIalited,51  N. 
H.  436 ;  12  Am ,  Rep  140 ;  Uanney  t).  Higby, 
4  Wis. 164;  Soraers  v.  McLanglin,&7  Wis. 
!I64. 
1  Hatch,  Carr.,  §  73!,  citing  Dawes  v. 


Peck,  8  Term.  Uep.,  330;  Blum  r.  The 
Caddo,  1  Woods,  64;  Tindall  v.  Taylor, 
28Eng.  Law  &  E<(.  210;  I'otter  f.  Lan- 
sing, 1  Johns.  215;  Dutton  v,  Solomon - 
son,  3  Bos.  &  1'.  582 ;  Brown  v.  Hodgson, 
2  Camp.  36;  DeWolf  v.  Ins.  Co.  20  Jofins. 
214;  Grimtb  v.  Inglede\7,  6  S.  &U.  429; 
Lawr.  Hatcher,  4  Blackf.  ,S64;  Green  v. 
Clark,  12  N.  Y.  343;  Krnlder  v.  Ellison, 
47  N.  Y.  36;  Capehart  v.  Fnrnham  Co.,  16 
South.  Kep.  627  (Ala.) 

2  Dnnlop  V.  Lambert,  6  CI.  &  F.  600; 
Krnlder  v.  EUi.son,  47  X.  Y.  36;  Arbnckle 
V.  Thompson,  37  I'a.  St.  170. 

3  Hutch,  Carr.,  §  734. 

4  Hntch.,  Carr.,  §  736;  Blanchard  v. 
Page,  8  Gray,  281;  Fune  v.  U.  Co.,  112 
Mass.  824;  Hooper  v.  K.  Co.,  27  Wis.  81; 
South.  Ex.  Co.  V.  Croft.,  49  Misa.  480. 

289 


i 


3 


9> 


§213 


THE  DUTY  TO  EE-DELIVER. 


[part  II. 


agent  or  servant  have  a  beneficial  interest  in  the  per- 
formance of  the  contract,  or  a  special  property  or  in- 
terest in  the  subject-matter  of  the  agreement.^ 

§  212.     Actions  for  Injury  to  or  Interference 

with  Goods.  — The  carrier  has  a  right  of  action  for 
an  injury  to  goods  while  in  his  possession,  or  against 
one  who  takes  them  out  of  his  possession,^  even  thougli 
the  wrongdoer  be  the  owner,  if  they  have  been  taken 
from  him  in  violation  of  his  right  to  their  custody.-' 
And  his  payment  for  lost  goods  transfers  the  property 
in  them  to  him.* 


-. -.r 


§  213.      Actions  for   Freiglit    Charges. — As    we 

have  seen,^  before  he  receives  goods  to  be  carried,  ho 
is  entitled  to  demand  payment  of  a  reasonable  amount 
for  the  carriage;  otherwise,  he  may  refuse  to  carry. 
But  where  a  carrier  has  undertaken  the  carriage  of 
goods  without  such  demand,  and  without  payment  be- 
ing made,  he  not  only  has  the  right  to  retain  the  goods 
in  his  possession  until  his  reasonable  demands  have 
been  satisfie<l;"  but  should  he  have  parted  with  the 
possession  of  the  goods  without  a  settlement  of  his 
claim,  he  may  bring  an  action  at  law  to  recover  com- 
pensation for  his  services.'^  This  compensation  is 
called  "freight."       The  charges  must  be  reasonablo,** 


1  Browne  Carr.,  §  599;  Thompson  v. 
Fartro,  49  N.  Y.  188. 

2  Hutch. ,  Carr.,  §  425 ;  Merrick  v.  Urain- 
ard,38  Barb.  574;  White  ti.  ]$ascom,28 
Vt.  268;  Delord  v.  Seinour,  I  Ind.  532. 

3  Hutch.,  Carr.,  §  428,  citing  Story, 
Bail.,§303;  Young  r.  Kimball,  23  Pa.  St. 
193;  Van  Balaam  t'.  Dean,  27  Mich.  104. 
He  may  sue  the  shipper  of  dangerous 
property  whose  goods  have  iujnred 
other  property  in  his  custody.  The 
Nitro  Glycerine  Case.,  15  Wall.  624; 
Pierce  v.  Winsor,  2  Spragne  35 ;  Boston 
etc.  R.  Co.  V.  Shaniy,  107  Mass.  568. 

290 


4  Hagarstown  Bk.  v.  Adams  Ex.  Co., 
45  Pa.  St.  419 ;  S4  Am.  Dec.  499.  Tlie  cur- 
rier may  have  a  right  by  contract  lo 
keep  the  injured  property  on  paying  the 
owner  its  value.  Chicago  etc.  U.  Co.  v. 
Katazenbach,  118  Ind.  174;  20  N.  E.  Uep. 
709. 

A  Ante,  §  94. 

6  See  Post  Lien. 

7  Browne,  Carr.  ,§  46V. 

8  Killmer  v.  U.  Co.,  100  N.  Y.  395;  BS 
Am.  Uep.  194;  Smith  v.  Findley,  34  Kas. 
816;  8  Pac.  Kep.  871. 


en.  XIII.] 


THE  DUTY  TO  BE-DELIVER. 


§214 


and  if  not  fixed  by  agreement,  are  regulated  by  what 
is  customarily  charged  for  similar  services,*  and  in- 
clude advances  which  he  may  have  made  to  previous 
connecting  carriers.^  And  he  is  entitled  to  freight  only 
on  the  goods  actually  delivered  at  the  place  agreed 
upon.^  But  if  they  are  delivered,  the  fact  they  are  in  an 
injured  or  worthless  state  does  not  affect  the  carrier's 
right  to  freight,  but  the  consignee  has  his  action  for  the 
damage,  or  may  set  it  up  against  the  carrier's  claim.* 

The  consignee  being  presumptively  the  owner  of  the 
goods,  becomes  liable  prima  facie  on  his  accepting 
them."^  Yet  if  he  is  but  the  agent  of  the  shipper,  and 
this  :s  known  to  the  carrier,  he  cannot  be  held.^  The 
consignor  having  made  the  contract  of  carriage,  is,  of 
course,  liable,^  though  he  may  show  by  parol  evidence 
that  the  carrier  had  agreed  to  look  to  another  for  his 
charges.** 

§  214.  Power  to  Sell.  — He  has  no  right  to  sell 
the  goods  even  to  enforce  his  lieu  for  his  charges."     But 


^« 

-I 

3 


1  Lawson  Us.  &  Oust.  §  98;  Bancrofts. 
I'eters,  4  Mich.  61P  ntton  v.  R.  Co., 
llJur.  N.S.,879;  Middletont-.  Hayward, 
2Nott&:JcC.  9;  10  Am.  Dec.  554;  Kirt- 
lund  t*.  Montgomery,!  Swan, 452. 

2  Whiter.  Vann,  6  Humph.  70;  44  Am. 
Dec.  294; 

S  Gibson  v.  Sturge,  10  Kx.  622;  Price  r. 
Hartshorn,  44  Barb.  655;  Stcelman  v. 
Say'or,  3  Ware,  52;  The  Collenberg,  1 
lilack,  170;  Halwerson  v.  Cole,  1  Speai, 
321;  40  Am.  Dec.  fi03;  Crawford  v.  Will- 
iams, 1  Sneed, 205;  60Am.  D0C.14G;  Har- 
ris f.  Rand,  4  N.  H.  259 ;  17  Am.  Dec.  421. 
But  if  consignee,  or  agent,  is  willing  to 
dispense  with  the  performance  of  the 
whole  voyage,  and  voluntarily  accepts 
the  goods  before  the  whole  of  the  duty, 
imposed  by  the  original  contract,  has 
been  performed,  a  proportionate  amount 
of  freight  will  be  due  pro  rata  itineris. 
Browne  Carr.  §  465,  The  Newport,  Swa- 
bey,  335;  Abbott  on  Ship,,  p.  385,  llth 


ed. ;  The  Nathaniel  Hooper,  2  Sumn. 
542;  The  Mohawk, 8  Wall.  153;  Cook  v. 
Gowan,81  Mass.  237;  M'Kibbin  v.  Peck, 
39  N.  Y.  262. 

4  Whitney  r.  Ins.  Co.,  18  Johns.  208; 
MoGaw  t'.  Ocean  Ins.  Co.,  23  Pick.  405; 
Griswold  v.  Ins.  Co.,  3  Johns.  321 ;  3  Am. 
Dec.  490;  Hutch.  Carr.  §  446. 

s  Ilntch.  Carr.,  §  448. 

6  Hutch.  Carr.,  §  448. 

7  Hutch.  Carr.,  §  431;  Grant  v. 
Wood,  21  N.  J.  L.  294;  47  Am.  Dec.  162; 
Holt  r.  Westcott,  43  Me.  445;  69  Am. 
Dec.  74;  Woosteri'.  Tarr,  8  Allen,270;85 
Am.  Dec.  707. 

8  Wayland  i.  Mosely,  6  Ala.  430;  39 
Am.  Deo.  335. 

8  Notara  v.  Henderson,  L.  R.  6  Q.  B. 
346;  Saltus  v.  Everett,  20  Wend.  367;  32 
Am.  Dec.  541;  Hunt  v.  Haskell,  24  Me. 
339;  41  Am.  Dec,  387;  Myers  i-.  Baymore, 
10  Pa.  St.  114 ;  49  Am.  Dec.  586 ;  Bailey  v. 
Shaw,  24  N.  H,297;  55  Am.  Dec.  241;  Has - 

291 


§215 


THE  DUTY  TO  RE-DELIVER. 


[part  II. 


a  right  is  recognized  in  cases  of  controlling  necessity — 
as  where  the  goods  are  perishable'" — and  it  may  like- 
wise be  given  by  usage  and  custom. - 

§  215.  The  Carrier's  liieii.  — The  common  law, 
as  some  equivalent,  perhaps,  for  the  extraordinary  re- 
sponsibility which  it  imposes  upon  common  carriers 
and  innkeepers,  gives  them  a  lien  on  the  goods  en- 
trusted to  them  for  their  reasonable  charges.  This 
right  is  enjoy.ed  not  only  by  the  carrier  of  goods,  but 
by  the  carrier  of  passengers  as  to  such  property  as  the 
passenger  may  take  with  him  on  the  journey. 

The  lien  of  the  carrier  is  a  particular  lien,^  and 
though  a  general  lien  for  all  claims  against  the  cus- 
tomer may  be  claimed  under  a  well-settled  and  known 
usage  or  through  a  special  contract  between  the  par- 
ties;* yet  the  right  to  create  such  liens  is  restricted, 
and  the  doctrine  as  to  the  carrier's  right  to  create  a 
lien  for  a  general  balance  of  accounts,  stands  upon  the 
same  footing  as  the  doctrine  as  to  the  carrier's  right  to 
limit  his  common-law  liability,  /.  c,  it  may  not  be 
created  by  a  mere  notice  to  the  customer  unassented 
to  by  him.'^  The  right  of  retention,  which  the  carrier 
has  at  common  law,  only  extends  to  the  amount  which 
is  owing  for  the  carriage  of  the  goods.''     lie  cannot 


«am  r.  Ins.  Co.,  7  La.  Ann.  11;  56  Am. 
Dec.  691 ;  Ungely  r.  Ins.  Co.,  7  La.  Ann. 
271;  56  Am,  Dec.  603;  Kitchell  i".  Vana- 
dar,  1  Blackf.  359;  12  Am.  Dec.  249;  Uan- 
kin  r.  Packet  Co.,  9  Ileisk,  564;  24  Am. 
Rep.  339;  Briggs  r.  H.  Co.,  6  Allen, 
246;  8.'J  Am.  J>ec.  620.  In  some  .states 
lio  is  given  the  right  by  statute.  In 
snch  case  he  must  use  due  dili- 
gence in  obtaining  a  fair  price.  Na- 
than r.  ShiTers,  71  Ala.  117;  46  Am. 
Ucp.  303. 

1  Am.  Kx.  Co.  V.  Smith,  33  Ohio  St.  511 ; 
31  Am.  Rep.  561. 

2  Taylor  r.  Wells,  3  Watts,  65;    Kapp 
t>.   Palmer,   3    Walts,  I'S;  Pickering  i\ 

292 


IJnsk,  15  Kast,  44;  Kemp  r.  Ooughtry.U 
Johns.  107.  Hut  see  Bryant  f.  Commer- 
cial Ins.  (Jo.,  6  Pick.  131. 

3  Kushforth  f.  Iladlleld,  6  Kast.  ,522; 
Ilartshornc  r.  .Tohnston,  7  N.  .1.  (L.) 
108;  Wilson  r.  U.  Co.,  5i>  .Me.  60;  96  Am. 
Dec.  43.5;  Langworthy  v.  R.  Co.,  2  E.  D. 
Smith  195;  (iaiena  etc.  It.  Co.  i*.  Rae,  18 
111.  488;  68  Am.  Dec.  674;  Ames  v.  Pal- 
mer, 42  Mc.  197;  66  Am.  Dec.  271 ;  Pharr 
V.  Collins,  35  La,  Ann,  939;  48  Am.  Rep. 
251. 

4  Hutch.  Carr.  §  477. 

fi  Browne  (;arr.,  §429;   McFurland  t*. 
Wheeler,  26  Wend.  467. 
«  Adams  v.  Clark,  9  Cush.  216. 


CH.  XIII.] 


THE  DUTY  TO  RE-DELIVER. 


§215 


set  up  this  right  in  order  to  recover  incidental  outlays, 
such  as  for  warehouse-room/  or  port  charges,^  or  de- 
murrage,^ or  for  damages  caused  by  the  shipper 
through  breaches  of  his  contract  or  otherwise.*  But 
it  includes  advances  made  to  preceding  carriers  for 
their  charges,  where  the  bill  of  lading  does  not  show 
that  they  have  been  paid/' 

The  carrier's  right,  it  is  held  in  England,  is  not  af- 
fected by  the  fact  that  the  consignor  was  not  the  owner 
of  the  goods,  but  he  may  retain  them  until  his  charges 
are  paid,  even  where  the  actual  proprietor  claims  his 
own,"  this  doctrine  being  founded  upon  the  reasonable- 
ness that  those  who  are  bound  by  law  to  receive,  should 
be  paid  for  carrying.  But  while,  as  we  have  seen,^ 
the  American  courts  have  conceded  this  right  to  the 
innkeeper,  it  is  well  settled,  except  perhai)s  in  one 
State^  in  this  country,  that  as  against  the  true  owner, 
the  carrier  has  no  lien  for  his  charges  upon  the  goods, 
but  must,  upon  demand,  suiTender  them  to  him.'-*  In 
au.swer  to  the  reason  given  for  the  English  rule,  the 
American  courts  say:  **The  carrier  is  not  bound  to  re- 
ceive goods  from  a  wrongdoer.  He  is  bound  only  to 
receive  goods  from  one  who  may  rightfully  deliver 
them  to  him,  and  he  can  look  to  the  title  as  well  as 
persons  in  other  i)ursuits  and  situations  in  life.  Nor 
is  a  carrier  bound  to  receive  goods  unless  the  freight 


•J 


'I 

3 


V 


1  The  Virginia  v.  Kraft,  25  Mo.  76. 

2  Fuith  V.  East  India  Co.,  4  U.  &Ald. 
6,S0. 

3  Crommelin  v.  R.  Co.,  4  Keyes  90. 

*  Phillips  t'.  Kodie.  IS  East.  547;  Bar- 
ley v.  Gladstone,  3  M.  &  S.  205;  Gray  «>. 
Carr,  L.  R.  6  Q.  B.  622. 

«  Travis  f.  Thompson,  37  Barb.  23G; 
Briggsi'.  R.  Co.,  6  Allen  246;  Galena  etc. 
R.  Co.  f.  Kae,  18  111.  488;  White  i-.  Vann. 
6  nnmph.  70;  Wells  i-.  Thomas,  27 
Mo.  17. 


6  Yorkc  f.  Greenangh,2  I.il.Raym.  867; 
Butler  I.  Woolcott,  2  N.  R.  64;  Tnrrell  v. 
Crawley,  IH  Q.  H.  197;  Johnson  v.  Hill,  3 
Stark  172 ;  Binns  r.  I'igot,  9  C.  &  P.  208. 

1  See  ante. 

8  See  King  t-.  Richards,  6  Whart.  418. 

9  Fitch  V.  Vewberry,  1  Slich.  1 ;  Van 
Bnskitk  r.  Purinton,  2  Hall,  661;  CoU- 
man  v.  Collins,  2  Hall  569;  Stevens  v.  R. 
Co.,  8  Gray  262;  Clark  v.  R.  Co.,  9  Gray 
231;  Gilson  v.  Gwinn,  107  Mass.  126; 
Travis  v.  Thompson,  37  Baib.  236. 

293 


T^ 


r:: 


§215 


THE  DUTY  TO  RE-DELIVER. 


[part  II. 


or  pay  for  the  carriage  is  first  paid  to  him ;  and  he  may 
in  all  cases  secure  the  payment  of  the  carriage  in  ad- 
vance."^ The  right  of  stoppage  in  transitu  does  not 
affect  the  carrier's  lien.^ 


1  Robinson  v.  Baker,  5  Cash.  187. 

2  Chandler  v.  Belden,  18  Johns.  157; 
Raymond  v.   Tyson,   17   How.  63;  The 

294 


Eddy,  5   Wall.  481 ;  The  Volunteer,  1 
Snmn.  SSI. 


««;;, 


•J 

4ik 


PART  III. 


THE  COMMON  CARRIER  OF  PASSENGERS. 


•I 


»> 


295 


■I*"*' 


§  216.  Introductory.  — Though  the  carrier  of  hu- 
man beings  is  not  strictly  a  bailee,  yet  on  account  of 
the  similarity  in  many  respects,  of  his  position,  the 
public  interests  which  he  serves,  and  the  far-reaching 
scope  of  his  employment  at  the  present  day,  his  duties 
and  liabilities  are  measured  by  and  enforced  through 
those  rules  of  the  common  law  (with  some  variations), 
established  in  actions  against  the  common  carrier  of 
goods.  As  in  the  law  of  insurance,  the  principles  laid 
down  by  the  courts  in  the  earliest  form  of  insurance, 
viz.,  marine,  are  applied  in  almost  all  their  entirety  to 
the  more  recent  forms  o/  insurance,  fire,  life,  accident 
and  the  like,  so  it  has  been  with  the  law  of  carriers  of 
goods  and  persons. 

In  the  following  chapters  we  shall  consider:  I.  The 
delation  of  Carrier  and  Passenger  in  General  (Cap. 
XIV);  II.  The  Carrier's  Duty  in  Kegard  to  His  Means 
of  Transportation  (Cap.  XV);  III.  The  Contract  of 
Carriage  (Cap.  XVI);  IV.  The  Duties  abd  Liabilities 
of  the  Carrier  During  the  Transit  (Cap.  XVII);  V.  The 
Kesponsibility  for  the  Passenger's  Baggage  (Cap. 
XVIII);  VI.  The  Liability  of  the  Carrier  for  the  Acts 
of  Others  (Cap.  XIX);  and  VII.  The  Acts  of  the  Pas- 
senger Himself  as  Affecting  the  Carrier's  Liability 
(Cap.  XX). 


:; 


3 


297 


CHAPTER  XIV. 


THE    RELATION   OF   CARRIER   AND   PASSENGER. 


c 


Section  217.  Who  are  Common  Carriers  of  Passengers. 

218.  Must  Carry  for  all. 

219.  Where  Payment  of  Fare  Refused. 

220.  Where  Service  Demanded  Outside  his  Holding  out. 

221.  Where  He  has  Insuflicient  Room. 

222.  Where  Person  has  Conflicting  Interests. 

223.  Wliere  Person  Dangerous  or  Offensive. 

224.  Waiver  by  Receiving. 
226.  Who  are  Passengers. 

226.  Servants  of  Carrier  as  Passengers. 

227.  At  what  Time  Relation  Begins. 

228.  During  what  Time  Relation  Continues. 

229.  At  what  Time  Relation  Ends. 

230.  Persons  not  Passengers  to  whom  Carrier  Owes  Duty. 


§  217.    Who  are  Common  Carriers  of  Passengers. 

— A  common  carrier  of  passengers  is  one  who  under- 
takes for  hire  to  carry  all  persons  indifferently  who  may 
apply  for  passage.  To  constitute  one  a  common  carrier, 
it  is  necessary  that  he  should  hold  himself  out  as  such. 
This  may  be  done  not  only  by  advertising,  but  by  ac- 
tually engaging  in  the  business  and  pursuing  the 
occupation  as  an  employment  Railroad  companies, 
the  owners  of  ships,  steamboats,  ferries,  omnibuses, 
street-carp,  and  stage-coaches,  are  usually  common  car- 
riers of  passengers.^     The  common  carrier  may  trans- 


1  Nashville  etc.  R.  Co.  v.  Messino,  1       Brctberton  r.  Wood,  3  Brod.  &  B.  54;  9 


Sneed,  220;  Hanley  v.  R.  Co.  1  Edm.  Sel. 
Cas.  359 ;  Peixottl  v.  McLaagblin,  1  Strob. 
468;  47  Am.  Dec.  663;  Slimmer  v.  Merry, 
23  Iowa  90;  Richards  v.  We6tcott,2  Bosw. 
589;  Jencks  v.  Coleman,  2  Sam.   221; 

298 


rrioe,408;  HoUister  v.  Nowlen,19  Wend. 
234;  32  Am.  Dec.  4fi6;  Bennett  v.  Dntton 
10  N.  H.  481;  Lovett  «.  nobb8,2  Show. 
127. 


OH.  XIV.]     RELATION,  CARRIER  AND  PASSENGER. 


§218 


port  his  passengers  only  within  the  limits  of  a  town; 
as  the  owner  of  an  omnibus  or  other  vehicle  plying 
between  a  railroad  depot  and  a  hotel,*  or  street-cars 
running  upon  a  line  whose  terminal  points  are  within 
the  limits  of  the  same  city;  or  he  may  carry  between 
adjacent  or  remote  cities  in  the  same  country;^  or  the 
place  to  which  he  holds  himself  out  to  carry  his  pas- 
sengers may  be  in  a  foreign  country.^  The  carrier  may 
be  both  a  common  carrier  of  passengers  and  a  common 
carrier  of  goods  by  the  same  conveyance  and  at  the 
same  time.*  The  general  rules  in  this  respect,  as  to 
common  carriers  of  goods,  apply,  it  will  be  seen,  to  the 
common  carrier  of  passengers.^ 

§  218.  Must  Carry  for  All.—It  is  the  duty  of 
a  common  carrier  of  passengers,  as  distinguished  from 
a  private  or  special  carrier  of  the  same  for  hire,  to  re- 
ceive all  persons  who  apply  to  him  to  be  carried.  In 
this  respect  there  is  no  difference  between  the  prin- 
ciples which  apply  to  a  common  carrier  of  goods  and 
a  common  carrier  of  passengers.  The  reasons  which 
have  led  to  the  imposition  of  this  duty  are  the  same 
in  each  case,  viz.,  the  injury  which  would  arise  to  the 
public  if  a  person  were  allowed  publicly  to  profess  to 
carry  goods  for  all  persons,  and  then  refuse  the  goods 
of  certain  individuals.  The  same  hardship  would  arise 
in  the  case  of  passengers,  and  hence  the  duty  imposed 
on  each  is  similar.*^  But  to  the  general  rule,  there  are 
again,  several  exceptions,  viz.: 


1  Pannelee  v.  Lowitz,  74  111.  116 ;  24  Am. 
Kep.  276. 

2  Richards  v.  Westcott,  2  Bobw.  689. 

3  Itennett  v.  Peninsnlar  etc.  Steamboat 
Co.,6C.B.  775. 

4  Thomp.  Can.  Pass.,  26. 

fi  See  ante,  §  83.  He  is  subject  to 
public  regalation  and  control  like  the 
carrier  of  goods.  Seean<e§88.  He  cannot 
discriminate  between  different  persons 


as  to  rates  of  fare.  Ind.  etc.  B.  Co.  v.  Ui- 
nard,  46  Ind.  293;  State  v.  Overton,  24  N. 
J.  (L.)  435;  Chicago  etc.  R.  Co. «.  Parks, 
28  111.  460;  68  Am.  Dec.  662. 

«  Browne,  Carr.  §  494.  Bennett  v.  Dntton, 
10  N.  H.  481;  Wheeler  r.  R.  Co.,31  Cal. 
46;  89  &m.  Dec.  147;  Westchester  R.  Co. 
V.  Miles,  66  Pa.  St.  209;  93  Am.  Dec.  744; 
Stokes  V.  Saltonstall,  13  Pet.  181 ;  Taney 
11 ;  Day  v.  Owen, 5  Mich.  620 ;  72  Am.  Dec. 

299 


:> 
•A 


,l.»- 


r 


§  221  RELATION,  CARRIER  AND  PASSENGER.      [PART  III. 

§  219.     Where  Payment  ot  Fare  Refused.— The 

carrier  has  a  right  to  refuse  to  carry  a  person  who  re- 
fuses to  pay  his  fare  or  purchase  a  ticket.^ 

§  220.  Where  Service  Demanded  Outside  His 
Holding:  Out.  — He  may  refuse  to  carry  persons  who 
present  themselves  for  passage  not  at  the  reguhir  sta- 
tion or  customary  places  for  receiving  passengers,^  or 
at  times  when  he  does  not  hold  himself  out  as  ready 
to  carry  ;'^  or  in  vehicles  on  which  he  Is  not  obliged  to 
carry  passengers,  as  for  example,  freight  trains,^  cnn- 
structi'on  trains,'*  or  mail  or  baggage  cars,"  or  those 
who  desire  carriage  to  a  point  beyond  his  accustomed 
route,  unless  he  has  held  himself  out  to  carry  to  that 
point.' 

§  221.     Where  He   Has  Insufficient  Room.— In 

regard  to  a  want  of  room  in  his  vehicles,  the  same  rules 
apply  as  in  the  carriage  of  goods,**  and  if  an  unusual 
and  unexpected  number  of  people  should  present  them- 
selves, he  might  justify  his  refusal  to  receive  more  than 
he  could  accommodate,  upon  the  same  grounds."  IJut 
this  would  logically  apjily  to  those  onl^-  with  whom 
the  carrier  had  not  expressly  contracted,  for  if  a  car- 
rier by  stage,  car  or  boat  should  sell  a  ticket  to  a  pas- 


62;  Pleasants  v.  K.  Co.,  34  Cal.  586;  Tar- 
bell  r.  U.  Co.,34Cul.  616;  Hannibal  etc. 
K.  Co.  r.  Swift,  12  Wall.  2G.S;  Sanford  v. 
K.  Co.,  2  Phila.  107;  Benett  v.  Steam 
('o.,6  Com.  B.  775;  Hollister  v.  Nowlen, 
19  Wend.  234;  32  Am.  Dec.  455;  East 
Tenn.  K.  Co.  v.  Nelson,  1  Coldw.  272; 
Lake  Erie  etc.  R.  Co.  v.  Acres,  108  Ind. 
548;  9  N.  B.  Rep.  453;  Indianapolis  etc. 
R.  Co.  r.  I{inard,46  Ind.  293;  Elmira  v. 
Hands,  54  X.  Y.  612;  Beekman  v.  R.  Co., 
3  Paige.  45. 

1  Thonip.,  Carr.  Pass. ;  29  Tarbell  r.  R. 
Co.,  34  Cal.  616;  Day  r.  Owen,  5  Mich. 
520;  Jencks  t-.  Coleman,  2  Snmn.,  221; 
Nashville  etc.  R.  Co.  v.  Messino,  1  Sneed 
220;  Bretfaerton  v.  Wood,  3  B.  &  B.  64; 

300 


Anstin  v.  R.  Co.,  2  Q.  B.  442;   Ker  r. 
Mountain,  1  Ksp.  27. 

2  O'Brien  v.  R.  Co.,  15  Gray.  20;  77  Am. 
Dec.  .S47. 

3  Walsh  V.  R.  Co.,  42  Wis.  23, 

4  See  post. 

8  Ohio  etc.  R.  Co.  v.  Muhling,  30 111.7; 
25  Am.  Rep.  353. 

«  Kennedy  Cent.  R.  Co.  v.  Thomas,  79 
Ky.  160;  42  Am.  Rep.  608;  Ilonston  etc. 
R.  Co.  f.  Clemens,  55  Tex.  88;  O'Donnell 
f.  R.  Co.  59  I'tt.  St.  2,^' 

7  Wheeler  f.  R.  Co.,  31  Cal.  46. 

8  See  ante,  §  97. 

8  Chicago  etc.  R.  Co.  r.  Carroll,  5  111. 
(App.)  200;  Evansville  etc.  R.  Co.  v. 
DDncan,28  Ind.  441;  92  Am.  Dec.  323. 


ClI.  XIV.]     RELATION,  CARRIER  AND  PASSENGEII. 


§223 


sons^r  for  a  particular  trip,  then,  as  he  would  be  bound 
to  sell  no  more  tickets  than  he  had  room  for,  it  would 
seem  that  he  would  be  absolutely  liable  to  the  con- 
tracting passenger,  and  a  plea  of  want  of  room  would 
be  no  defense.* 

§  222.    Where  Person  has  Conflicting  Interests. 

— lie  may  refuse  a  person  whose  object  in  coming  on 
his  vehicle  is  not  carriage,  but  trade;-  or  one  whose 
object  is  to  interfere  Avith  the  interests  of  the  carrier; 
as,  for  instance,  the  agent  of  a  rival  line  who  intends 
to  solicit  custom."*  But  he  may  not  refuse  one  because 
he  has  not  commenced  or  does  not  intend  to  continue 
his  journey  on  the  carrier's  line,  or  that  of  another  fa- 
vored carrier.* 


§  223.     Where  Person  Dangerous  or  Offensive. 

— lie  may  refuse  to  carry  a  suspected  thief;''  a  gambler 
who  intends  to  carry  on  his  trade  on  the  vehicle;"  or  a 
person  who  intends  to  assault  another  passenger;^  a 
pers(m  so  gross  in  his  behavior  and  obscene  in  his 
language  as  to  be  a  public  nuisance;**  a  drunken  per- 
son;" or  one  whose  person  or  clothing  is  filthy  and  dis- 
gusting, or  who  is  infected  with  vermin  or  with  a  con- 
tagious disease;*"  or  one  whose  life  would  be  in  danger 
iit  the  place  of  destination,  or  whose  presence  there 
would  excite  lawless  violence."     Slight  intoxication, 


1  Ilawcroft  V.  U.  Co.,  8  Eng.  L.  &  Kq, 
3G2 ;  IG  Jnr.  196 ;  The  Pacinc,  1  Blatchf. 
5G9. 

2  The  Pacific,  1  lUatchf.  569;Rarryf. 
Oyster  Hay  etc.  Co.,  2  X.  Y.  S.  (;.  598;  67 
N.  y.  301;  23  Am.  Uop.  115;  ISarney  t: 
The  D.  U.  Martin,  11  lUatchf.  233; 
Sinallman  v.  Whilter,  87  111.  545 ;  29  Am. 
l£ep.  76. 

3  .Jencks  V.  Coleman,  2  Sum.  221. 

4  Kennett  v.  Dutton,  10  N.  H.  481. 
6  Jencks  v.  Coleman,  2  Snm.  231. 
6  Thurston  v.  R.  Co.,  4  Dill.  321. 


7  Bennett  v.  Dntton,  10  N.  H.  481. 

8  Jencks  v.  Coleman,  2  .Sum.  421. 

9  Jencks  v.  Coleman,  2  Sum.  221 ;  Vin- 
ton V.  n.  Co.,  11  Allen  304;  87  Am.  Dec. 
716;  Pittsburg  etc.  K.  Cc  r.  Pillow,  76 
Pa.  St.  510 ;  18  Am.  Kep.  424 ;  Railro.id  Co. 
V.  Hinds,  53  Pa.  St.  512 ;  Flint  v.  K.  Co.,  34 
Conn.  554;  Pittsburg  etc.  U.  Co.  v.  Van- 
dyne,  57  Ind.  576 ;  36  Am.  Uep.  68. 

10  Walsh  r.R.  Co.,  42  Wis.  23;  24  Am. 
Rep.  376;  Thurston  v.  R.  Co.,  4  Dill.  321. 

u  Pearson  v.  Duane,  4  Wall.  605. 

301 


§  224  RELATION,  CARRIER  AND  PASSENGER.      [PARTIII. 


however,  would  not  bo  a  sufficient  ground  upon  wliicli 
to  refuse  a  person  passage  on  a  public  conveyance,' 
nor  can  the  penalties  which  exclude  unchaste  women 
from  society  or  public  places  be  imported  into  the  hnv 
of  carriers,  so  long  as  there  is  nothing  in  their  conduct 
or  appearance  at  the  time,  whicl-  would  be  a  valid  rea- 
son for  their  refusal.  Therefore,  unless  her  condnci 
is  offensive,  a  woman  cannot  be  rejected  as  a  ])assenger 
because  she  is  a  notorious  prostitute."  And  no  one 
can  be  excluded  from  carriage  by  a  common  carrier  on 
account  of  color,  religious  belief  or  political  relations.' 

§  224.  Waiver  by  Receiviii;?. — As  to  both  goods 
and  ])assengers,  the  carrier  must  at  the  time  they  are 
received,  make  his  objection  and  secure  his  right  of  re- 
fusal.  If,  instead  of  this  he  receives  them  knowing  of 
the  facts,  his  liability  becomes  the  same  as  though  no 
ground  for  refusal  existed.^  In  the  carriage  of  pas- 
sengers, it  has  bt^eu  held  that  when  the  passenger  is 
received  and  the  journey  is  begun,  the  carrier  thereby 
consents  to  his  being  carried  to  his  destination,  not- 
withstanding that  a  reason  exists  which  would  have 
been  sufficient  in  law  to  justify  him,  but  which  was 
unknown  to  the  carrier,  m  Ilo  time  the  passenger  was 
received/'  But  a  carrier  who  waives  his  rights  as  to 
one  person,  is  not  boun;)  (■•  waive  them  as  regards  an- 
other person.  "A  carrier,  like  all  others,  may  bestow 
favors  when  he  chooses.  Kights,  not  favors,  are  the 
subject  of   demand  by  all  persons    exclusively.""     In 


1  Pitts,  etc.  R.  Co.  i:  Vandyne,  ante; 
Pntunmv.  H.  Co.,  55  N.  Y.  108;  U  Am. 
Kep.  101. 

2  nrown  f.  R.  Co.,  7  Fed.  Uep.  51. 

3  Westchester  etc.  R.  Co.  r.  Miles,  55 
Pa.  St.  209 ;  93  Am.  Dec.  744 ;  Cliicago  etc. 
R.  Co.  r.  Williams,  55  111.  186 ;  8  Am.  Rep. 
641. 

4  Hannibal  etc.  R.  Co.  r.  Swift,  12  Wall. 

302 


262 ;  .'it.  Louis  etc.  R.  Co.  v.  Flannagan,  27 
111.  (App.)  489;  Evansville  e«.c.  R.  Co.  r. 
Duncan,  28  Ind.  441 ;  92  Am.  Dec.  322. 

fl  Pearson  v.  Daane,  4  Wall.  606;  Tar- 
bell  r.  R.  Co.,  34  Cal.  616.  But  see  Bar- 
ney r.  The  D.  R.  Martin,  11  Blatchf.  28,^; 
Comr.  Power,  7  Mete.  696;Thomp.  Carr. 
Pass.  30. 

6  Barney  i-.  The  D.  R.  Martin,  11 
Blatchf.  233. 


on.  XIV.]     RELATION,  CAKHIEU  AND  PAS8KNGEU.  §  225 


tho  Fodoral  Court,  it.  hns  boon  hold  tlini  wlioro  a  rnil- 
road  .sold  a  ticket  to  a  i)orHou  boforo  diNcovorln;;  that  ho 
was  ono  whom  it  had  a  i'i};ht  to  oxcludc,  it  iiiUHt  rotuni 
till'  consldoraiion  if  it  dosiros  to  rociud  tho  contrait  for 
trausportation.'  Tho  samo  coiuhision  Avan  roachod 
vhero  a  i)as.soiijfor'H  tondor  of  faro  on  tho  car  was  ro 
fu.sod  on  tho  ground  that  an  oxh'a  chargo  was  ro(iuir('(l 
to  bo  paid  whoro  ticket h  wore  not  i)urchasod  in  ad- 
vance, and  tho  paHsenj^or  refused  the  extra  amount  and 
was  ejected." 

§225.  Who  Are  PasseiigcvH. — A  pass<'n};or  is 
one  wlio  is  entitled  to  travel  in  some  public  convey- 
ance, otherwise  than  in  the  service  of  the  carrier,  by 
virtue  of  a  contract  express  or  implied,  with  the  car- 
rier, and  who  is  within  tho  carrier's  char<»o  under  such 
contract.^ 

There  can  bo  no  contract  relation  with  one  who  is 
on  the  carrier's  vehicle  by  fraud,  as  for  example,  a  stow- 
away, or  one  stealin<j,'  a  ride,'  or  ono  who  has  obtained 
a  ])ass  by  misropresoutatiou,^'  or  is  ridin}>'  on  a  non- 
transferable i)ass  issued  to  another,"  or  ono  who  pay.^ 
no  faro,  and  is  i^ormittod  to  ride  free  on  a  fa':je  repre- 
sentation to  the  conductor  that  ho  is  an  express  mos- 
senjior,^  or  one  who  is  riding  free  by  consent  of  the 


1  Thnreton  v.  U.  Co.,  4  Dill.  321. 

2  HIand  v.  K.  Co.,  55  Cal.  570.  And 
see  Wright  r.  K.  Co.,  20  Pnc.  Kep.  770 
(Cal). 

:t  No  oxact  deflnition  of  a  passenger  is 
to  bo  fonnd  in  the  books.  That  in  Penn. 
K.  Co.  V.  Price,  96  Pa.  .St.  267:  "One  who 
travels  in  some  public  conveyance  by 
virtue  of  a  contract  expressed  or  implied 
with  tho  carrier  on  the  payment  of  fare 
or  that  which  is  accepted  as  the  equiva- 
lent therefor"  is  faulty,  in  that  a  person 
may  be  a  passenger  though  not  in  the 
conveyance  at  all.  And  see  Bricker  v. 
R.  Co.,  1,S2  Pa.  St.  1 ;  19  Am.  St.  Kep.  585. 
18  Atl.  Kep.  983.  Mr.  Patterson  (Rail. 
Pas.  L.  210)  requires  the  contract  to  be 
for  a  valuable  consideration,  but  it  is 


well  settled  that  one  is  a  passenger 
though  ho  pays  no  fare  or  tho  carrier 
receives  no  consideration  whatever. 

•t  Jaws.  Rights,  Rem.  and  Pr.,  §  1878; 
Hendryx  v.  R.  Co.,  45  Kas.  877;  25  Pac. 
Rep.  893. 

5  IJrown  r.  R.  Co.,G4Mo.  536,  or  bought 
a  ticket  with  counterfeit  money.  Mem- 
phis etc.  R.  Co.  V.  Cliastine,  54  Miss.  503. 

8  Toledo  etc.  R.  Co.  r.  Reggs,  85  111.  80; 
28  Am.  Rep.  613;  Way  r.  R.  Co.,  64  la. 
4S;  52  Am.  Rep.  431;  Id  N.  W.  Rep.  828. 
Rut  see  Great  North.  R.  Co.  v.  Hanson,  10 
Kx.  826. 

7  Union  Pac.  R.  Co.  v.  Nichols,  8  Kas. 
501 ;  12  Am.  Rep.  475 ;  and  see  Higgins  v. 
R.  Co.,  36  Mo.  418. 

303 


§  225  RELATION,  OAKRIER  AND  PASSENGER.     [PART  III. 


servants  of  the  carriei',  but  in  known  violation  of  the 
carrier's  rules.*  A  person  who,  on  demand  of  h  s  fare 
refuses  to  pay  it,  is  not  a  passenj^er,  and  though  the 
carrier  may  immediately  eject  him,  yet  if  on  account 
of  fear  of  trouble  he  should  be  allowed  to  remain,  he 
would  not,  thereafter,  become  a  passenger.- 

The  carrier,  by  running  his  vehicle,  by  advertising 
the  hours  of  departure,  and  his  rates  of  fare,  makes 
a  general  offer  to  the  world  to  carry  on  the  terms  pub- 
lished, and  persons,  by  presenting  themselves  at  the 
proper  place  and  time,  with  the  intention  of  taking 
passage,  accept  the  proposal  and  the  contract  is  com- 
plete.^ The  caiTier's  regulations  may  properly  re- 
quire that  a  passenger  must  present  a  ticket  or  pay  his 


1  Toledo  etc.  R.  Co.  r.  Brooks,  81  111. 
245;  Brown  v.  K.  Co.,  64  Mo.  5.S6;  Eaton 
r.  R.  Co.,  57  N.  Y.  382;  15  Am.  Rep.  513; 
Houston  V.  R  Co.,  v.  Moore,  49  Tex.  31 ; 
30  Am.  Rep.  98 ;  Rncker  v.  R.  Co.,  61  Tex. 
409;  Chicago  etc.  R.  C;o.  r.  Michie,  S3  111, 
427;  The  Lion,  L.  R.  2  Adm.  102;  Duff  r. 
«.  Co.,  91  I'a.  St.  458;  Jenkins  v.  11.  Co.. 
41  Wis.  112;  WoolPey  r.  R.  Co.,  58  N.  W. 
Rep.  444  (Neb,).  But  the  simple  fact 
that  the  person  ia  riding  free  does  not 
make  him  the  less  a  passenger.  And  if 
he  has  been  invited  by  a  servant  of  the 
carrier  in  charge  of  the  vehicle,  as  the 
conductor  of  a  train  or  the  driver  of  a 
street  car,  to  ride  with  him  without 
charge  he  is  properly  there,  having  a 
right  to  assume  that  the  servant  has  au- 
thority to  extend  this  coartesy  to  hii? 
friends,  even  though  be  is  acting  in  dis- 
obedience to  his  orders.  The  question 
always  is  does  the  person  know  that  he 
is  practicing  1  fraad  on  the  carrier,  in 
riding  free.  Wiifon  r.  R.  Co.,  107  Mass. 
'  108;  9  Am.  Rep.  11 ;  125  Mass.  l.SO;  Wash- 
burn V.  R.  Co.,  3  Head,  638;  Austin  v.  R. 
Co.,  8  Best  &  S.  ,327;  McVeety  r.  R.  Co., 
45  Minn.  268;  47  N.  W.  Rep.  809;  Sher- 
man f.  R.  Co.,  72  Mo.  62;  Creed  f.  R. 
Co.,  86  I'a.  St.  139;  I'itts.  etc.  R.  Co.  r. 
Caldwell,  74  I'a.  St.  421;  tiradin  v.  R. 
Co.,  30  Minn.  217;  14  N.  W.  Hep.  881; 
Secoff.  R.  Co.,  18  Fed.  Rep.  221;  Luv-a* 

304 


V.  R.  Co.,  33  Wis.  41;  Muelhansen  v.  R. 
Co.,  91  Mo.  344;  2  S.  W.  Rep.  315;  Mc- 
Kern  v.  R.  Co.,  43  Mo.  79;  Metro- 
politan etc.  R.  Co.  V.  Moori',  83  Ga. 
453;  10  8.  K.  Rep.  730.  And  where 
one  ie  carried  free  he  is  a  passen- 
ger and  entitled  to  all  the  rights 
of  one.  See  post  §  246.  So  where  a 
railroad  makes  no  charge  for  children 
of  tender  age  in  company  of  grown  per- 
sons the  former  are  passengei'f.  Austin 
V.  U.  Co.,8  B.  &  S.  327;  L.  R.  2  Q.  B.  142; 
Littlejohn  r.  R.  Co.,  148  Mass.  478;  Todd 
V.  R.  Co.,  3  Allen,  18;  Com.  v.  R.  Co.,  108 
Mass.  7.  In  a  recent  case  in  Ireland  the 
novel  question  was  presented  whether 
where  a  female  passenger  was  injured 
on  a  railroad,  the  plaintiff,  an  infant, 
being  then  en  ventr?  sa  mere,  and  being 
also  permanently  injured  and  crippled, 
could  after  her  birth  sue  the  carrier  for 
her  injuries.  The  question  was  decided 
in  the  negative  mainly  on  the  ground 
that  the  carrier  had  no  knowledge  of 
the  plaintiff's  presence  on  the  tt  ^in  as  a 
passenger.  Walker  v.  II.  Co.,  2«  Ir.  L. 
R.  69.  See  a  review  of  the  case  in  26 
Am.  L.  Kev.  50. 

2  Highly  I'.  Gilmer,  8  Mont.  90;  36  Am. 
Rep.  450. 

3  Lawson  Contr.  §  12.  See  poal.   Time* 
Tables  §  237. 


OH.  XIV.]     RELATION,  OAEEIER  AND  PASSENGER. 


§225 


fare  before  entering  the  car  or  boat,  or  that  part  of  his 
premises  where  his  vehicles  are,  but  if  he  leaves  them 
open  to  anyone,  then  every  person  has  a  right  to  enter 
the  vehicles  without  in  any  other  manner  notifying  the 
carrier  that  he  has  accepted  his  offer.^ 

There  can  be  no  implied  contract  where  a  person 
boards  a  train,  even  though  he  intended  to  pay  fare, 
which  is  not  intended  for  the  carriage  of  passengers,^ 
as  for  example,  a  freight  train,'*  or  a  car  devoted  ex- 
clusively to  the  railway  mail  service, "•  or  goes  upon  the 
locomotive,'"'  or  a  hand  car,"  or  a  pay  car,^ — for  as  the 
carrier  has  not  offered  to  carry  on  such  vehicles,  there  is 
no  proposal  on  his  part  which  the  person  can  turn  into 
a  contract  by  acceptance.  It  would  be  different,  of 
course,  if  the  carrier  should  accept  his  faro,  or  if  the 
servants  of  the  carrier  should  know  of  his  presence 
and  consent  to  it.^  But  one  who,  by  mistake,  gets  on 
a  passenger  train  other  than  the  one  he  intended  to 
take  passage  upon,  is  nevertheless  a  passenger  upon 
the  train  he  is  on." 

One  is  a  passenger  who  is  traveling  lawfully  on  a 
carrier's  vehicle  though  his  purpose  is  not  alone  trans- 
portation, but  is  to  carry  on  a  trade  or  business  on 
board  for  himself  or  for  others.  We  have  seen  that 
the  carrier  may  exclude  such  a  person,  but  if  he  does 
not  do  so,  he  obtains  all  the  rights  of  a  passenger. 
Examples  of  this  class  of  passengers  are  found  in  the 


1  Cleveland  f.  Xew  Jersey  Steam  Co., 

68  X.  Y.  306. 

2  Katon  V.  R.  Co.,  hi  N.  Y.  382. 
3(Jardnerf.  U.  Co.,  51  Conn.  143;  GO 

Am.  Dec.  12;  .Sherman  v.  U.  Co.,  72  Mo. 
62;  37  Am.  Itcp.  4,S2;  B:aton  r.  K.  Co.,  57 
N.  Y.  ?">;  Waterbnry  r.  U.  Co.,  17  Fed. 
Rep.  b, .. 

4  Mrickerr.  R.  Co.,  1,32  I'a.  .St.  1;  19 Am. 
St.  Rep.  585;  IH  At!.  Rep.  983. 

5  Chicago  etc.  R.    Co.    r.  Michic,  83 
111.  428;  Rocker  v.  R.  Co.,  61  Tex.  499. 

21 


B  rioar  f.  R.  Co.,  70  Me.  6'5;  35  Am. 
Rep.  299. 

7  .South,  etc.  R.  Co.  v.  Singleton, 66  Ga. 
2r>2. 

K  Gardner  v.  R.  Co.,  supra;  Bricker  v. 
U.  Vo.,siii)ra;  Dunn  v.  R.  Co.  58  Me.  187; 
4  \m.  Rcfi.  2G7. 

0  Columbus  etc.  R.  Co.  v.  Powell,  40 
Ind.  37;  Cincinnati  etc.  R.  Co.  v.  Carpei, 
112  Ind.  26;  2  Am.  St.  Itep.  145;  13  X.  E. 
Rep.  122;  14  Id.  352;  Lake  Shore  etc.  !{. 
Co.  V.  Rosenweig,  6  Atl.  Rep.  545. 

3on 


I- 

V, ,:;   ; 


§226  RELATION,  CARRIER  AND  PASSENGER.     [PARTIII. 

government  mail  agents,^  the  messengers  of  express 
companies,-  persons  wlio,  by  contract  with  the  carrier, 
have  the  right  to  sell  refreshments  or  other  articles 
of  necessity  or  convenience  on  his  cars  or  boats,''  or  one 
employed  on  or  in  charge  of  a  private  car  drawn  by 
a  railroad  company,*  or  a  sleeping  car  owned  by  an- 
other corporation."' 

Every  one  riding  in  a  vehicle  provided  for  passengers 
is  presumed  to  be  there  lawfully  as  a  passenger,  hav- 
ing either  paid  or  intending  to  pay  his  fare  when 
called  upon,  and  the  onus  is  upon  the  carrier  to  prove 
that  he  was  not." 

§  226.     Servants  of  Oarrier  as   Passengers. — A 

servant  of  the  carrier  riding  on  his  master's  business 
on  his  master's  conveyance,  is  not  a  passenger,  and  it 
is  not  material  whether  he  was  or  was  not  at  the  time 
in  charge  of  the  vehicle  or  engaged  in  any  service  upon 
it.'     Where  the  plaintiff  traveled  on  a  free  pass  from 


1  Collett  V.  R.  Co.,  15  Jar.  105.S; 
ll.imniond  f.  R.  Co.  6  S.  C.  l.SO;  24 
Am.  Dec.  46T;  XoUon  r.  R.  Co.,  U  N.  V. 
444;  69  Am.  Dec.  623;  Seybolt  r.  K.  Co., 
9,5  N.  Y.  562;  47  Am.  Rop".  7.t;  Mcllorr-. 
U.  Co.,  105  Mo.  455;  16  S.  W.  Rep.  49; 
Magoflln  V.  R.  Co.,  102  Mo.  ,')40;  15  S.  W. 
Rep.  76;  Gulf  etc.  R.  Vo.  r.  Wilson, 79 
Tex.  371 ;  15  S.  W.  Rep.  2«0.  Contra,  I'enn. 
R.  Co.  r.  I-rice,  96  Pa.  St.  25'i. 

2  Yeomansf.  Contra  Costa  Steam  Nav. 
Co.,  44  Cal.  71;  IMair  r.  R.  C'o.,66  N.  Y. 
313;  23  Am.  Rep.  55;  Union  I'ac.  R.  Co. 
f.  Nichols,  8  Kan.  505;  12  Am.  Rep.  476; 
Rrewer  v.  R.  Co.,  124  N.  V.  59;  26  N.  K. 
Rep.  324;  Wilton  i'.  R.  Co..  107  Mass.  108; 
Kenney  r.  R.  Co.,  128  N.  Y.  426;  26  N.  K. 
Rep.  62B. 

3  Yeomana  v.  Contra  Costa  Steam  Nav. 
Co.  44  Cal.  71 ;  Com.  r.  R.  Co.,  108  Mass.  7 ; 
11  Am.  Rop.30.  Kntonewhoboardsacar 
to  sell  to  pasaengers  newspapers  or 
other  articles,  having  no  right  to  do  so 
bat  merely  permitted  by  the  carrier's 
servants,  is  not  a  passenger.  Fleming 
V.  R.  Co.,  1  Abb.  N.  C.  433;  Duff  f.  R.  Co., 

306 


91  Pa.  St.  454;  .^6  Am.  Rep.  675;  Black- 
more  V.  R.  Co.,  38  (T.  C.  Q.  B.  172. 

4  Lockhurt  v.  Lichtenthaler,  48  Pa.  St. 
151;  Lackawanna  U.  Co.  v.  Chenewith, 
52  Pa.  St.  382 ;  91  Am.  Dec.  168;  Cumber- 
land Valley  H.  Co.  v.  Meyers,  55  Pa.  St. 
2H8 ;  see  Torpcy  r.  R.  Co., 20  U.  C.  Q.  B.  446. 

s  Jones  V.  R.  Co.,  28  S.  W.  Rep.  383 
(Mo.) 

«  Penn.  R.  Co.  v.  Books,  57  Pa.  8t.  339; 
98  Am.  Rep.  2;iO.  The  presumption  that 
a  person  on  a  construction  train  is  not 
lawfully  thereon,  may  be  overcome  by 
evidence  that  the  company  is  in  the 
habit  of  allowing  its  cnii)loyee8  to  ride 
on  such  trains  to  and  from  their  work  or 
tlirir  homes.  Rosenbanm  v.  R.  Co.,  38 
Minn.  173;  8  Am.  St.  Rep.  663;  36  N.  W. 
Rep.  447. 

/  IJyan  r.  R.  Co.,  23  Pa.  St.  .384:  Gill- 
shannon  r.  R.  Co.,  10  Cush.  228;  Russell 
f.  R.  Co.,  17  N.  Y.  134 ;  Tunney  f.  R.  Co., 
L.  R.  1  Com.  P.  291 ;  Seaver  v.  R.  Co.,  '.4 
(iray  466;  Kas.  Pac.  R.  Co.  v.  Salmon,  11 
Kas,  83;  McQueen  v.  R.  Co.,  30  Kas. 
689;     1     I'ac.     Rep.    139;     Higgins     v. 


CH.  XIV.]     EELATION,  CARRIER  AND  PASSENGER. 


§227 


his  home  to  his  post  of  duty,  to  and  back  upon  the 
defendant's  ears,  it  was  ruled  that  he  was  not  a  pas- 
senger, the  court  saying:  "Although  he  had  no  par- 
ticular duty  to  discharge  while  traveling,  yet  the 
traveling  of  the  deceased  was  not  as  a  passenger,  but 
as  an  employee  under  the  contract  of  service  between 
him  and  the  defendant."^  But  a  servant  of  the  carrier 
traveling  on  his  employer's  conveyance  on  his  own 
(the  servant's)  business,  is  a  passenger.- 

The  effect  of  the  person  being  considered  as  a  pas- 
senger or  a  servant,  in  an  action  for  an  injury  received 
while  on  the  vehicle,  is  very  important.  If  the  status 
of  the  person  is  that  of  a  passenger,  the  carrier  is  an- 
swerable to  him  for  any  injury  happening  through 
very  slight  negligence,  or  a  want  of  the  very  highest 
degree  of  care;  whereas,  if  his  status  is  that  of  servant, 
the  carrier  owes  to  him  but  ordinary  care.  Again,  if 
he  is  a  passenger,  the  carrier  is  answerable  to  him  for 
injuries  done  to  him  by  the  servants  of  the  carrier,  in 
(onformity  with  the  rule  of  rrspomlcitt  superior.  But 
if  he  is  a  servant  of  the  carrier,  this  rule  does  not  ap- 
ply so  as  to  make  the  latter  responsible  for  injuries 
done  to  him  by  other  servants  of  the  carrier,  engaged 
in  the  same  common  employment,  /.  c,  fellow  servants. 

§227.     At    what   Time    Relation   Begins.— The 

mere  purchase  of  a  ticket,  or  the  contracting  to  be  car- 


R.  Co.,  36  Mo.  418;  Colnmbns  etc. 
R.  Co.  r.  Arnold,  31  Ind.  182.  Contra, 
I'itzpatrick  f.  H.  Co.,  7  Ind.  436;  Gillen- 
waterr.  K.  Co.,  5  Ind.  339;  61  Am.  Dec. 
lOljO'Donnellf.  R.  Co.,  59  Pa.  St.  239; 
98  Am.  Dec.  .S36;  50  Pa.  St.  490. 

1  Vickr.  R.  Co.,  95  N.  Y.  267;  47  Am. 
Rep.  36;  New  York  etc.  R.  Co.  t-.  Hiirns, 
17  Atl.  Rep.  lao  CS.  .1).  But  in  this  case 
it  was  held  that  as  to  accommodations 
such  employee  was  entitled  to  the 
rightsof  a  passenger.  The  car  becom- 
ing crowded  the  conductor  ordered  him 
to  give  op  his  jeat  to  a  paying  passenger 


and  on  his  refusing  ejected  him.  This 
was  held  to  be  wrong.  "Whether,"  said 
the  Court,  "his  relations  to  the  com- 
pany was  that  of  servant  or  passenger, 
hiB  right  to  transportation  rested  in 
contract.  *  •  *  In  the  absence  of 
anything  to  the  contrary,  the  right  to 
transportation  will  be  held  to  include 
the  ordinary  incidents  of  railroad  car- 
riage." 

2  Ohio  etc.  R.  Co.  r.  Muhling,  30111.  9-, 
81  Am.  D.c.  .S.S6;  Doyle  t'.  R.  Co.,  87  N. 
K.  Rep.  770  (Mass).  Rat  see  Higgina  v. 
R.  Co.  36  .Mo.  418. 

307 


§227  KELATION,  CARRIER  AND  PASSENGER.     [PART  III. 


■ 


ried,  does  not  make  one  a  passenger;  while  it  gives 
him  a  right  to  be  carried,  he  is  not  a  passenger  until 
he  has  placed  himself  actually  or  constructively  within 
the  carrier's  charge.*  With  or  without  a  ticket  or 
previous  contract,  or  the  payment  of  his  fare,  he  is  a 
passenger  from  the  moment  he  enters  the  premises  of 
the  carrier  set  apart  for  the  reception  of  passengers 
with  the  intention  of  taking  passage.-  He  is  a  pas- 
senger while  in  the  receiving  place  of  the  carrier  wait- 
ing for  the  coacli  or  train,  or  boat  to  come;"*  and  so 
also  where  he  is  passing  from  the  office  of  the  carrier 
to  the  platform  of  the  station,  being  all  the  time  on 
the  carrier's  premises;*  and  so  where  be  is  in  a  coach 
owned  by  a  railroad  on  his  v»  ay  to  take  a  train,  though 
he  has  not  bought  his  ticket  or  announced  his  inten- 
tion of  traveling  anywhere. •'"' 

In  the  case  of  street  cars  and  other  vehicles  having 
no  prescribed  stopping  places,  one  is  a  passenger  just 
as  soon  as  he  reaches  the  vehicle  in  response  to  the 
carrier's  express  or  implied  invitation  to  board  it."  In 
a  leading  English  case,  plaintiff  held  up  his  finger  to 
the  driver  of  an  omnibus,  who  stopped  to  take  him 


1  .Inne  v.  R.  Co.,  153  Mass.  79;  '26  X.  E. 
Rep.  2.S8. 

2  IJrien  v.  IJennett,  8  Car.  &  P.  7'.>4: 
Davis  r.  U.  Co.,  10  How.  Pr.  3.TO;  Cleve- 
land r.  New  Jersey  Steam  Co.,  08  N.  V. 
306;  Central  K.  Co.  v.  Perry,  58  Ga.  461; 
Hannibal  etc.  R.  Co.  v.  Martin,  11  111. 
(App.)386;  Warren  r.  R.  Co., 8  Allen 22"; 
Gordan  v.  R.  Co.,  40  Barb.  54G;  AUen- 
der  r.  R.  Co.,  37  la.  264 ;  Wabash  etc.  R. 
Co.  I'.  Rector,  104  111.  270;  Shannon  v.  R. 
Co.,  78  Me.  52;  2  Atl.  Rep.  678;  Lake 
.Shore  etc.  R.  Vo.  r.  Foster,  104  Ind.  293; 
4N.  E.  Rep.  20;Poucher  v.  R.  Co.  49  N. 
T.  203. 

3  Gordan  r.  R.  Co.,  40  Barb.  540;  Al- 
lenderi'.  R.  Co.,  37  Iowa,  204;  provided 
he  comes  a  reasonable^  time  before  the 
departnre  of  the  train  by  which  he  is  to 

308 


travel.  Harris  v.  Stevens,  31  Vt.  79 :  73  Am. 
Dec.  .337,  the  Court  saying:  "The  situa- 
tion of  the  station-house  with  reference 
to  public  houses,  the  distance  that  the 
intended  traveler  resides  from  the  stii- 
tion,  and  many  other  consideratron.';, 
should  all  be  taken  into  account  in  de- 
termining the  length  of  time  that  it 
would  be  reasonable  for  the  person  to 
come  to  the  station  and  remain  before 
the  departure  of  the  train  on  which  he 
intended  to  take  passage." 

••  Warren  v.  R.  Co.,  8  Allen  227 ;  85  Am. 
Dec.  700;  see  Indiana  etc.  K.  Co.  c.  Ilu'I- 
elson,  13  Ind.  325  ;  74  Am.  Dec.  255. 

■'•  nulTet  V.  R.  Co.,  40  N.  Y.  108. 

«  McDonough  r.  R.  Co., 137  Mass.  210; 
Smith  V.  R.  Co.,  32  Minn.  1 ;  18  N.  E.  Uep. 
827 ;  McQuade  f.  R.  Co., 03  N.  Y.  (S.  C.)  91. 


CII.  XIV.]     RELATION,  CARRIER  AND  PASSENGER. 


§228 


up,  and  just  as  he  was  puttiDg  bis  foot  on  the  step  of 
the  omnibus,  the  tlriver  drove  on,  and  he  fell  on  his 
face  to  the  ground.  It  was  held  that  he  was  a  passen- 
ger.' 

§  228.     During  what  Time]  Relation  Continues. 

— And  where  the  transportation  has  begun,  the  person 
remains  a  passenger  so  long  as  he  is  in  the  carrier's 
charge,  whether  he  is  present  in  or  absent  from  the 
carrier's  veliicle.^  At  a.  stopping  place  rn  route  he  has" 
a  right  to  alight,  and  the  carrier  is  charged  with  the 
same  degree  of  care  while  he  is  using  the  platform 
or  stations  of  the  carrier  waiting  for  the  journey  to  be 
resumed,  as  he  is  while  the  passenger  is  in  the  vehicle, 
and  this  is  espcK-ially  so  where  the  stopping  place  is 
one  where  the  passenger  is  invited  to  obtain  neces- 
sary refreshments,  or  do  other  business."*  So  he  is  a 
passenger  while  walking  from  one  of  the  carrier's  con- 


1  IJrien  r.  ISennet.S  C.&  1".  724.  It  has 
been  lieM  tlint  there  is  no  invitation  to  a 
person  to  boanl  a  moving  train,  and 
that  one  who  does  so  does  not— at  least 
nutil  he  has  reached  a  place  of  safety 
11181(10  the  car  {.see  Dewire  v.  U.  Co., 
UH  JIass.  343 ;  19  N.  E.  Rep.  r>23)— become 
a  pas.senger.  Merrill  i-.  11.  Co.,  139  Mass. 
2.;8;  1  N.  K.  Rep.  64S ;  Vanlitsch  v.  R.  Co., 
102  N.  Y.  280;  G  N.  E.  Uep.  677;  Perry  t'. 
U.  Co.,  ()6  (ia.  746.  Bnt  one  does  not 
lo.se  his  rights  as  a  passenger  by  alight- 
ing from  the  train  on  the  wrong  side. 
McKirable  v.  U.  Co.,  139  Mass.  542;  2  N. 
E.  Hep.  97. 

2  Classman  r.  U.  Co.,  9  Hun.,  618;  73 
N.  Y.  606;  Keokak  etc.  I'aeket  Co.,  v. 
Trno,  8SI11.  608. 

•i  .Slatef.U.Co.,r>OMe.,176;  4  Am.  Rep. 
250;  Jeffcrsonville  etc.  R.  Co.  r.  Riley, 
39  Inil.  563;  Ormond  r.  Hughes,  60  Tex. 
180;  Parsons  v.  R.  Co.,  113  N.  \'.  358; 
21  N.  E.  I'.cp.  145;  Classman  v.  R.  Co., 
tupra;  Todgo  r.  Boston  S.  S.  Co.,  148 
M?!'  ;.  207;  19  X.  E.  Rep.  .17.3.  In  Haobrik 
V.  Uarr,  29  Fed.  Uep.  298,  a  passenger  at 


a  steamboat  landing  had  gone  ashore  to 
buy  some  tobacco  and  on  returning 
fell  from  an  unsafe  gang  plank  and  was 
drowned.  The  carrier  wa.s  held  liable, 
the  Court  saying:  "The  ne\t  question 
is  one  of  law.  In  behalf  of  the  defend- 
ant, it  is  said  that  if  the  decedent,  as 
his  wife  says,  attempted  to  go  ashore  to 
get  tobacco,  he  placed  himself  outside 
hi.s contract  as  a  passenger,  and  the  de- 
fendant was  nnder  no  obligation  to 
provide  him  a  means  of  egress  from  the 
steamer  for  such  a  purpose.  To  this  I 
cannot  assent.  In  my  opinion,  the  de- 
cedent, when  on  board  as  a  passenger, 
had  the  right  to  go  ashore  when  he  did, 
and  it  was  the  duty  of  the  defendant  to 
provide  a  safe  means  of  passage  from 
the  steamer  to  the  pier.  The  necessity 
on  the  part  of  a  passenger,  who  has 
taken  his  position  as  a  passenger,  to  re- 
turn to  the  pier  is  a  common  incident  of 
travel.  It  is  constantly  done  to  find  lost 
baggage,  to  speak  to  a  friend,  and  may 
be  done  to  purchase  tobacco  by  any  one 
addicted  to  the  use  of  that  weed." 

309 


r 


ir 


.:j 


T.f 


%  230  BELATION,  CARRIER  AND  PASSENGER.     [PART  III. 

veyances  to  anotber.^  And  where  the  transportation 
is  temporarily  suspended  owing  to  some  defect  in  the 
carrier's  line,  he  is  until  it  is  resumed,  and  while  in  the 
carrier's  charge,  a  passenger.^ 

§  229.  At  what  Time  Relation  Ends.— He  re- 
mains a  passenger  until  the  journey  has  been  con- 
cluded and  he  has  left  the  carrier's  premises,''  or  a  rea- 
eoua*  '  'ne  has  elapsed  in  which  he  could  have  left 
the  \  I  r  the  premises.*  And  one  does  not  revive 
his  status  as?  a  passenger  by  going  back  to  the  con- 
veynv.co  after  having  left  it,  for  some  purpose  of  his 
own,  wit  I.  "!0  i..  .^tiou  to  continue  his  journey.''' 

§  230.  Persons  not  Passengers  to  wliom  Carrier 
Owes  Duty.  • — There  are  certain  persons  who,  though 
not  passengers,  yet  to  whom  the  carrier  is  liable  to 
nearly  the  same  extent  as  he  is  to  ijassengers."  Thes<' 
are  persons  having  business  with  the  carrier,  or  duties 
to  perform  incidental  to  the  arrival  or  departure  of 
trains. 

The  carrier,  by  permitting  or  constructively  inviting 
to  his  premises  persons  who  conu»  there  to  welcome 
a  coming,  or  speed  a  parting  guest  or  friend,  is  bound 
to  protect  them  against  injury  while  tliere.'^  Thus,  a 
man,  waiting  at  a  railroad  station  for  his  wife  to  arrive 
by  train,  is  entitled  to  have  the  premises  in  good  order 


1  Hnlbert  v.  R.  Co.,  40  N.  Y.  145 ;  North • 
rnp  f.  Rail.  Pass.  Assnr.  Co.,  43  N.  Y. 
616 ;.?  Am.  Rep.  724. 

2  Dwinelle  v.  U.  Co.,  120  N.  Y.  117;  24 
N.  E.  Rep.  319. 

:i  Allerton  v.  R.  Co.  14G  Mass.  241; 
15  X.  E.  Rep.  625;  Heinlein  v.  R.  Co.,  147 
Mass.  139;  9  Am.  St.  Rep.  676;  16  N.  K. 
Rep.  698 ;  Piatt  f.  R.  Co. ,  4  Th .  &  C.  406 ; 
Dodger.  R.  Co.,  148  Mass.  207;  19  N.  E. 
Rep.  .S73;  Pitts,  etc.  R.  Co.  f.  Kraase, 
po«(;  Cincinnati  etc.  R.  Co.  v.  Carper,  112 

310 


In(1.26;  13  N.   E.  Rep.   122;  14  Id.  .W2. 

4  Inholf  r.  R.  Co.,  20  Wis.  ,S62;  Pitts, 
etc.  It.  Co.  V.  Krouse,  30  Wis.  222. 

a  Pitta,  etc.  R.  Co.  v.  Ivrouse,  30  Wis. 
222. 

«  Patt.  Ry.  Ace.  L.  218;  Stiles  v.  R.  Co., 
65  (ia.  370. 

7  Watkins  v.  R.  Co.,  37  L.  T.  (N.  H.)  193 
neiiman,  J. ;  Hamilton  i',  R.  Co.,  64  Tex. 
251 ;  Texas  etc.  R.  Co.  v.  Best,  66  Tes.  Ill ; 
18  S.  W.  Rep.  224. 


T 


CH.  XIV.]     RELATION,  CARRIER  AND  PASSENGER. 


230 


SO  that  he  shall  suffer  no  injury.^  So,  a  friend,  see- 
ing another  off,-  and  one  who  is  present  assisting  an- 
other on  a  train,  must  not  be  injured  in  alighting,  by 
the  want  of  care  of  the  railroad.^  And  the  same  is 
true  of  a  haekman  who  drives  a  passenger  to  the  sta- 
tion,* and  of  the  shippers  or  consignees  of  freight.^ 
The  principles  of  this  section  include  also  servants 
of  a  railroad  while  upon  the  line  or  premises  of  the 
defendant  railroad,  in  the  performance  of  their  duty 
towards  their  employer."  In  all  these  cases,  the  per- 
son must,  of  course,  be  free  from  contributory  negli- 
gence.'' 

But  persons  resorting  to  stations  not  as  intending 
passengers,  or  under  any  express  or  implied  invitation, 
are  mere  licensees  to  whom  a  railroad  is  not  liable 
for  any  injuries  resulting  from  the  condition  of  its 
premises  or  its  failure  to  keep  them  in  repair.^  Thus, 
where  a  crowd  of  persons  took  refuge  from  a  storm  in  a 
station,   and   it   was   blown   down;"   where   a   crowd 


1  McKone  r.  R.  Co.,  51  Mich.  GOl;  47 
Am.  Rep.  696;  17  N.  W.  Rep.  74;  see  Kay 
r.  R.  Co., 65  Pa.  St.  269;  Davis  v.  R.  Co.> 
68  Wis.  G46;  17  N.  W.  Rep.  400;  Mnrphy 
V.  R.  Co.,  133  Mass.  121;  (ioodfellow  v. 
R.  Co.,  106  Mass.  461;  Barney  v.  R.  Co., 
92  N.  Y.  289. 

2  Atchison  etc.  R.  Co.  v.  Jobns,36Kas. 
769;  14  I'ac.  Rep.  237. 

3  Dorr  V.  R.  Co.,  59 Mo.  27 ;  21  Am.  Rep. 
871;  Stiles  f.  R.  Co.,  65  Ga.  370;  Contra, 
Lucas  1'.  R.  Co.  6  Gray,  64 ;  66  Am.  Dec. 
406,  criticised  in  Thomp.  Carr.  I'ass.  50. 
But  in  this  case  the  plaintilf' s  contribu- 
tory negligence  was  a  suflicient  bar. 

4  Tobin  V.  R.  Co.,  59  Me.  183. 

«  Holmes  r.  R,  Co.,  L.  R.  4  Kx.  123; 
Wright  V.  R.  Co.,  L.  R.  10  Q.  B.  298. 

6  Patt.  Ry.  Ace.  I,.  228  citing;  Vose  v. 
R.  Co.,  2  II.  &  N.  728 ;  Graham  f.  R.  Co., 
18  C.  B.  (N.  S.)  229;  Snow  v.  R.  Co.,  8 
Allen  441 ;  Cent.  R.  Co.  r.  Armstrong,  49 
Pa.  St.l8b;[Brown  v.  R.  Co.,  40  U.  C.  Q.  B. 
.S33;8wam8on  v.  R.  Co.,  3Ex.  Div.  341; 
Warhurton  i'.  Co.,  I...  R.  2  Ex.  70;  Penn. 
etc.  R.  Co,  V.  State,  68  Md,  374;  HI.  Cent. 


R.  Co.  V.  Frelka,  110  111.  498;  Penn.  Co 
r.  Gallagher, 40  Ohio  St.  637;  re  Merrill, 
54  Vt.  200;  Zeiglcr  v.  R.  Co.,  52  Conn.  543. 

7  Lucas f.  R.  Co.,6Gray.  65;  Bait.  etc. 
R.  Co.  V.  Depew,  40  Ohio  St.  121 ;  Gold- 
stein V.  R.  Co.,  46  Wis.  404;  1  N.  W.  Rep. 
37;  Ragatad  v.  R.  Co.,  31  Minn.  208; 
Burns  v.  R.  Co.,  101  Mass.  BO. 

8  Patt.  Ry.  Ace.  L.iw  185,  citing  inter 
alia;  Gautret  u.Egerton,  L.  R.  2  C.  P.  374; 
CollistJ.  Sclden,  L.  R.  3  C.  P.  495;  South- 
cote  V.  Stanley,  1  II.  &  N.  246 ;  Wilkinson 
r.  Fainie,  1  U.  &  C.  633;  Ivory  v.  Hedges, 
9  Q.  B.  Div.  811 ;  Sutton  v.  R.  Co.,  66  N.  Y. 
243;  Nicholson  v.  R.  Co.,  41  N.  Y.  526; 
Lariraore  v.  R.  Co.  101  N.  Y.  391 ;  Severy 
t'.  Nicholson,  120  Mass.  306.  And  see 
also  Illinois  Cent.  R.  Co.  v.  Godfrey,  71 
111.  500;  22  Am.  Rep.  112;  Pittsburgh  etc. 
R.  Co.  V.  Bingham, pos«;  Bait.  etc.  B.Co. 
V.  Schwindliug,  101  Pa.  St.  258;  47  Am. 
Rep.  706;  Lary  v.  K.  Co.,  78  Ind.  323;  41 
Am.  Rep.  672. 

0  Pitts,  etc.  R.  Co.  V.  Bingham,  29 
Ohio  St.  364;  23  Am.  Rep.  751,  and  see 
Lary  v.  U.  Co.,  tupra. 

811 


•  ..> 


r 

....1 


§230  KELATICN,  CARRIER  AND  PASSENGER.     [PARTIII. 


gathered  on  a  station  platform  to  see  the  President 
of  the  United  States,  who  was  passing  through  the 
place,  and  the  platform  gave  way,*  in  each  case 
several  being  killed  or  injured,  it  was  held  that  the 
railroad  was  not  liable. 


1  "Haditbeeii  the  hour  (or  the  ar- 
rival or  departure  o(  a  train,  and  he  [the 
plaintiff]  had  gone  there  to  welcome  a 
coming  or  speed  a  parting  gnest,  it 
might  very  well  be  contended  that  he 
was  there  by  authority  of  the  defend- 
ants, as  much  as  if  he  was  actually  a 
passenger,  and  it  would  then  matter 
not  how  nnuEual  might  have  been  the 
crowd,  the  defendants  wonld  have  been 
responsible.  As  to  all  such  persons  to 
whom  they  stood  in  such  a  relation  as 

312 


required  care  on  their  part,  they  were 
bound  to  have  the  structure  strong 
enough  to  bear  all  who  stand  on  it;  as 
to  all  others,  they  were  liable  only  for 
wanton  or  intentional  injury.  The 
plaintiff  was  on  the  spot  merely  to  en- 
joy himself,  to  gratify  his  curiosity  or 
to  give  vent  to  his  patriotic  feelings. 
The  defendants  had  nothing  to  do  with 
that;"Gilli8r.  K.  Co.,  69  Pa.  St.  129;9« 
Am.  Dec.  317. 


^ 


CHAPTER  XV. 

THE  DUTY  AS  TO  MEANS  OF  TRANSPORTATION. 

Section  231.  Carrier  of  Passengers  not  an  Insurer. 

232.  Duty  as  to  Vehicles  and  Appliances  for  Transportation. 

233.  Duty  as  to  Roadway. 

234.  Duty  as  to  Receiving  and  Landing  Places. 

235.  Duty  to  Adopt  new  Inventions  for  Safety. 

236.  Responsibility    for     Negligence    of     Manufacturer     or 

Contractor. 


§  231.      Carrier  of  Passengers  not  an  Insurer. 

— The  carrier  of  passengers  is  uot  subject  to  the  extra- 
ordinary responsibility  of  the  common  carrier  of  goods. 
The  intelligence  of  persons  carried  as  passengers,  their 
immunity  from  theft,  their  capacity  to  avoid  dangers, 
and  their  liability  through  their  own  want  of  care  to 
incur  risks  which  are  not  incident  to  bales  and  boxes, 
must  draw  a  broad  distinction  between  the  duties  and 
liabilities  which  devolve  upon  and  are  incurred  by 
a  carrier  who  undertakes  these  dissimilar  branches  of 
the  same  trade.'  He  is  not  liable  to  a  passenger  as 
an  insurer  of  his  safety,  because,  being  himself  a 
rational  being,  it  is  presumed  that  the  passenger  will 
look  after  his  own  safety — as  a  reasonable  being  natur- 
ally would — except  in  so  far  as  he  must  necessarily 
depend  upon  the  carrier.^  He  does  not  then  insure  or 
warrant  the  safety  of  his  passengers,  but  contracts  to 
exercise  the  highest  degree  of  care  to  preserve  that 
safety.^     And  this  liability,  it  must  not  be  forgotten, 


1  Browne,  Carr.,  §  474. 

2  Browne,  Carr.,  §  476. 

3  Lawson,  llights,  Bern.  &  Prac,  §  1907, 
citing  HoUister  v.  Nowlen,  19  Wend.  234 ; 


32  Am.  Dec.  455 ;  Camden  etc.  R.  Co.  v. 
Burke,13  Wend.  611 ;  28  Am.Dec.488 ;  Frink 
V.  Coo,  4  G.  Greene,  5B5 ;  61  Am.  Dec.  141 ; 
Peters  v.  Bylands,  20  Pa.  St.  497;  69  Am. 

313 


?;  232 


MEANS  OF  TRANSPORTATION. 


[part  III. 


'i 


r 


extends  only  to  passengers,  between  whom  and  the  car- 
rier, there  is  a  relation  of  trust  and  confidence  and  a 
ijiiasi  bailment.  As  to  others,  his  duty  is  no  greater 
ihan  the  duty  of  any  one  man  towards  anotheiy  viz., 
not  to  injure  him  through  his  actual  or  culpable  neg- 
lect* 

§  232.     Duty  as  to  Vehicles  and  Appliances  for 

Transportation. — Though  there  are  a  few  early  Eng- 
lish cases-  and  some  American  ones,"'  in  which  it  is 
laid  down  that  a  carrier  of  passengers  warrants  the 
safety  of  his  vehicles,  on  the  ground  that  such  a  rule 
is  one  "plain  and  of  easy  application,  and  when  once 
established,  is  distinct  notice  to  all  parties  of  their 
rights  and  liabilities    *     *    and  will  work  no  more 


Dec.  746;  Hegeman  v.  R.Co.,  13  N.  Y.  9; 
64  Am.  Dec.  517;  Edwards  t'.  Lord,  49 
Me.  279;  Taylor  r.  K.  Co.,  48  N.  11.  304; 
2  Am.  Rep.  229;  Sales  v.  West.  Stage  Co., 
4  Iowa,  647;  Baltimore  etc.  K.  Co.  v. 
AVightman,29Gratt.431;26Am.Kep.384; 
McElroy  v.  U.  Co.,  4  Cush.  400;  50  Am. 
Dec.  794 ;  Warren  v.  U.  Co.,  8  Allen,  2S7 ; 
85  Am.  Dec.  700;  Thayer  v.  R.  Co.  22  Ind. 
26 ;  85  Am.  Dec.  409 ;  State  v.  R.  Co.  24 
Md.  84;  87  Am.  Dec.  600;  Deyo  v.  R.  Co.. 
.S4N.  Y.  9;  88  Am.  Dec.  418;  Johnson  v. 
K.  Co.,  U  Minn.  296;  88  Am.  Dec.  83; 
Hnlsenkamp  v.  R.  Co.,  37  Mo.  547;  90 
Am.  Doc.  399;  Morrissey  v.  AViggin's 
Ferry  Co.,  43;  Mo.  380;  97  Am.  Dec.  402; 
Moore  ti.  R.  Co.,  69  Iowa,  491 ;  Knight  v. 
R.  Co.,  66  Me.  234;  96  Am.  Dec.  449;  Sim- 
mons V.  Steamboat  Co.,  97  Mass.  361 ;  93 
Am.  Dec.  99 ;  Bowen  v.  R.  Co.  18  N.  Y. 
408;  72  Am.  Dec.  629;  Brown  v.  R.  Co.,  34 
N.  Y.  404;  Seymour  r.  R.  I  o.,  3  Bias.  43; 
Redhead  v.  R.  Co.,  L.  R.  2  Q.  B.  412; 
Christie  v.  Griggs,  2  Camp.  79;  Ingalls  r. 
Bills,  9  Met.  1 ;  43  Am.  Dec.  346 ;  Boyce  v. 
Anderson,  2  Pet.  160;  McKinney  r.  Neil 
1  McLean,  640;  McPadden  v.  R.  Co.,  44 
X.  Y.  478;  4  Am.  Rep.  705;  47  Barb.  247; 
Ford  V.  n.  Co.,  2  Fost.  &  F.  730;  Israel  v. 
Clark,  4  Esp.,  259;  Burns  v.  R.  Co.,  I.  R. 
13  C.  L.,  N.  S.,  443;  Pym.  v.  R.  Co., 2  Fost. 
A  F.  619,  621 ;  Manry  v.  Talmadge,  2  Mc- 

314 


Lean,  157;  Carroll  v.  B.  Co.,  58  N.  Y.  126; 
17  Am.  Uep.  221 ;  Crogan  v.  R.  Co.,  18  Alb. 
L.  J.  70;  Sullivan  f.  R.  Co.,  .SO  Pa.  St.  234; 
72  Am.  Dec.  698;  Meier  f.  R.  Co.,  64  Pa. 
St.  225 ;  3  Am.  Rep.  581 ;  Stockton  v.  Krcy, 
4  Gill,  406;  45  Am.  Dec.  138;  Frink  v. 
Potter,  17  111.,  406;  Jeffersonvillo  R.  Co. 
V.  Hendricks,  26  Ind.  228,  231 ;  Fairchild 
t'.  California  Stage  Co.,  13  Ci'.l.  599;  Mc- 
Clary  i-.  R.  Co,, 3  Neb.  45 ;  19  Am.  Rep.  (iai ; 
Sawyer  f.  R.Co.,  37  Mo. 240;  90  Am.  Dec. 
382 ;  Keith  t:  Piukham,  43  Me.  601 ;  69  Am. 
Dec.  80;  White  v.  Bonlton,  1  Peake.  113; 
Galena  R.  Co.  r.  Fay,  16  111.  558;  63  Am. 
Dec.  323;  Nashville  etc.  R.  Co.r.  Elliott, 
1  Cold.  611;  78  Am.  Dec.  506;  Chicago 
etc.  R.  Co.  r.  Landauer,58  N.  W.  Uep.  434 
(Neb.) ;  San  Antonio  etc.  R.  Co.,  v.  Long, 
26  S.  W.  Rep.  114  (Tex.] 

1  State  V.  R.  Co., 24  Md.84;  87  Am.  Dec. 
600. 

2  Bremncrf.  Williams,  1  C.  &  P.,  414; 
Sharp  V.  Gray ,  9  Bing.  457 ;  2  M.  &  S.  621 ; 
ovenalcd  in  later  cases;  see  Redhead  v. 
U.  Co.,  L.  R.  2  ti.  B.  12 ;  4  Id.  379. 

3  Alden  v.  R.  Co.,  26  N.  Y.  102;  82  Am. 
Dec.  401 ;  overruled  in  Carroll  v.  R.  Co., 
68  N.  Y.  126,  138,  139;  McPadden  t'.  B. 
Co.,  44  N.  Y.  478;  Caldwell  v.  New  Jer- 
sey Steamboat  Co.,  47  N.  Y.  290;  Crogan 
V.  R.  Co.,  18  Alb.  L.  J.  70. 


OH.  XV.] 


MEANS  OF  TRANSPORTATION. 


§  232 


burdensome  results  to  carriers  of  passengers  than  to 
leave  them,  with  the  uncertain  criterion  of  responsi- 
bility, to  the  trouble  and  expense  of  strongly  litigated 
contests  before  juries,"* — these  cases  have  been 
expressly  or  impliedly  overruled.  The  modern  Eng- 
lish doctrine  is  best  expressed  in  Redhead  v.  liailiraij 
Company,^  where  a  pr,  senger  was  injured  by  the  break- 
ing of  the  tire  to  a  wheel  of  a  railway  carriage,  in  con- 
sequence of  an  air-bubble  which  had  remained  there  in 
its  original  nmnufacture.  It  was  shown  that  the  oc- 
casional presence  of  air-bubbles  in  the  tires  of  railway 
car  wheels  could  not  be  prevented  hy  any  means 
known  to  the  manufacturer  of  such  wheels,  and  that 
their  existence  could  not  be  discovered  by  any  known 
tests.  It  was  held  that  the  passenger  could  not  re- 
cover damages. 

The  principles  of  the  law  are  discussed  by  the  Judges 
at  considerable  length.  Lush,  J.,  before  whom  the  case 
has  been  tried,  and  a  verdict  returned  for  the  carrier, 
said:  "A  rule  was  granted  for  a  new  trial,  on  the  ground 
that  a  carrier  of  passengers  is  bound  at  his  peril  to 
l)rovide  a  roadworthy  carriage,  and  is  consequently 
liable  if  the  carriage  turns  out  to  be  defective,  not- 
withstanding that  the  infirmity  was  of  such  a  nature 
that  it  could  neither  be  guarded  against  nor  discovered. 
The  question  thus  naketUy  raised  is  one  of  vast  im- 
portance at  the  present  day,  both  to  railway  com)  Jiuies 
and  passengers;  and  there  being  no  case  in  our  reports 
in  which  it  has  been  argued  and  adjudicated,  we  took 
time  to  consider  our  judgment.  Having  done  so,  and 
given  to  the  subject  the  best  consideration  in  my  power, 
I  adhere  to  the  opinion  that  the  law  imposes  no  such 
liability  on  railway  companies;  though,  as  my  brother, 


1  Allen  V.  R.  Co.,  gupra. 


2  L.  U.  2  Q.  B.  412;  4  Id.  379. 
315 


§232 


MEANS  OF  TRANSPORTATION.  [PART  III. 


•  > 


Blackburn,  has  come  to  a  different  conclusion,  I  express 
that  opinion  with  some  degree  of  diffidence.  It  is  not 
contended  that  the  obligation  of  a  carrier  of  passengers 
is  co-extensive  with  that  of  a  carrier  of  goods,  who,  by 
the  custom  of  the  realm,  is  placed  in  the  position  of  an 
insurer,  subject  onl}-  to  tlKM'xceptions  of  loss  or  damage 
by  'the  act  of  Clod  or  the  jiublic  enemies  of  the  crown.  ' 
The  reasons  upon  which  that  liability  is  based,  and 
which  are  expressed  by  Holt,  C.  J.,  in  Coi/fis  v.  Bcnutrd,^ 
and  by  IJest,  (\  J.,  in  A'//r//  v.  Ifonn;-  are  inapplicable  to 
a  carrier  of  j^asscngers.  The  latter  has  not  the  same 
control  over  i)ersons  which  he  has  over  goods,  nor  the 
same  opportunities  of  abuse  and  misconduct,  the  ap- 
prehension of  which  gave  rise  to  this  rigorous  rule  of 
law;  and  therefore,  the  law  has  never  imposed  upon 
him  the  responsibility  of  an  insurer.  The  undertaking  of 
a  carrier  of  passengers,  says  JJr.  Story  in  his  work  on 
Itailments,'*  is  not  an  undertaking  absolutely  to  'carry 
safely,'  but  (Uily  to  exercise  'due  care  and  diligence 
in  the  performance  of  his  duty.'  liut  it  is  contended 
that  in  thisi  particular  part  of  his  <luty,  viz.,  the  pro- 
viding a  suitable  vehicle,  his  undertaking  goes  beyond 
the  measure  of  due  care  and  'diligence,'  and  includes 
a  warranty  that  the  carriage  which  he  provides  is 
sound  and  free  from  all  defects  which  render  it  unfit 
for  the  service,  though  he  has  used  every  means  in 
his  power  to  make  it  sound,  and  though  he  could  not 
by  any  amount  of  care,  skill,  or  vigilance,  have  ascer- 
tained that  it  Avas  not  so.  The  language  of  Story,  just 
quoted,  does  not  suggest  any  such  qualification,  and 
surely  so  important  an  element  in  the  contract  about 
which  he  is  treating  would  have  been  noticed  by  that 
learned  writer  if  he  had  supposed  it  to  exist.     No  such 


1  2  Ld.  Kaym.  909,  918. 

2  5  Bing.  217,  220. 

316 


3  §  601. 


OH.  XV.] 


MKANS  OP  TRAN8P0IITATI0N. 


§232 


liability  is,  however,  hintetl  at  throufjjhoiit  the  work; 
nor,  as  I  am  aware  of,  in  any  other  text-book.  The 
proposition  is  one  whiili  T  cannot  adopt  without  au- 
thority; because  I  can  see  no  reason  wliy  a  carrier 
.should  be  held  to  warra^''  uiore  than  due  care  and  dili- 
gence can  enable  hi;ii  to  perform,  as  respects  the 
(|uality  of  his  carriaf^e,  when  it  is  admitted  that  he  is 
under  no  such  liability  as  respci'ts  the  con«luct  or  mau- 
aj^ement  of  it.  We  were  pressed  with  what  were  al- 
leged to  be  analoj;()Us  cases  of  a  ship-owner,  who  is 
held  to  warrant  the  si>awortliiness  of  his  vessel,  and  of 
a  manufacturer 'of  <;oods  ordered  for  a  ;"iven  purpose, 
who,  it  was  contended,  is  held,  lo  w.irrant  their  fitness 
and  sUi'tlciency  for  that  purjjose.  As  to  ship-owners, 
I  agree  there  is  abundant  authority  for  the  doctrine 
laid  down;  and  moreover  that  there  is  no  distinction, 
in  this  respect,  between  a  carrier  by  water  and  a  car- 
rier by  land.  But  it  is  to  be  observed  that  whenever 
this  particular  liability  of  a  ship-owner  is  mentioned, 
it  has  reference  to  his  obligation  as  the  carrier  of  cargo. 
In  that  capacity  he  is  an  insurer  of  its  safe  delivery, 
subject  only  to  the  excepte<l  ])ei'ils.  His  warranty  of 
seaworthiness,  in  such  a  case,  springs  out  of,  and  neces- 
sarily results  from  the  absolute  duty  he  has  underta- 
ken; and  it  is  not  a  warranty  superadded  to,  and  ex- 
ceeding the  terms  and  measure  of,  his  contract  to 
carry  as  it  would  be  if  it  were  extended  to  a  carrier  of 
passengers.  A  carrier  of  goods  by  land  may,  with 
equal  propriety,  be  said  to  warrant  the  roadworthiness 
of  his  carriage,  because  he  warrants  against  every 
casualty  by  which  the  goods  might  be  lost  or  damaged 
on  the  journey.  As  regards  the  second  case  put,  viz., 
that  of  the  manufacturer  who  supplies  goods  to  order 
for  a  given  use  or  purpose,  I  do  not  stop  to  consider 
whether  the  analogy  is  so  complete  as  the  argument 

317 


^r 


§232 


MEANS  OF  TRANSPORTATION. 


[part  III. 


c  •  ■ :: 


-1   \ 

::  ■  '.J 


assumes  it  to  be,  because  it  does  not  appear  to  me  tliat 
the  case  mainly  relied  on,  viz.,  Broun  v.  Edgington,^ 
sanctions  the  doctrine  which  is  sought  to  be  deduced 
from  it.  Upon  carefully  examining  the  facts  there,  it 
will  be  found  that  no  such  question  as  that  we  have 
now  to  determine,  arose  in  the  case.  The  insufficiency 
of  the  rope  was  attribut.able  to  causes  which  imply 
blame  in  the  manufacturer,  viz.,  to  either  a  want  of 
judgment,  or  a  Avant  of  care,  or  skill,  both,  or  all.  The 
rope  was  not  strong  enough  for  the  purpose  for  which 
it  was  known  by  the  defendant  to  have  been  require<l, 
it  having  been  nmde  of  too  small  a  size,  or  of  faulty 
materials,  or  been  badlj'  put  together;  and  whatever 
the  cause  of  its  failure  was,  it  v\'as  one  which  might 
have  been  prevputed,  and  it  was  assumed  by  the  court, 
as  it  was  assumed  in  the  case  of  Junes  v.  liright,^  that 
the  manufacturer  might,  and  therefore  ought,  to  have 
made  it  sufficient  for  the  purpose.  The  main  contest 
in  the  case  was  Avhcther  the  defendant  was  liable,  see- 
ing that  he  was  not  the  manufacturer  of  the  rope,  but 
had  procured  it  from  a  rope-maker.  The  (juestion  (»f 
liability  for  a  hidden,  undiscoverable,  and  unavoidable 
defect  was  not  pr(^«ent  to  the  mind  of  any  of  the  judges 
who  decided  that  case.  I  cannot,  therefore,  regard  it 
as  an  authoritv  to  the  extent  neceswarv  to  sustain  the 
plaintiff's  argument,  nor  am  I  aware  of  smy  other  case 
on  that  point  which  esiablished  such  a  position.  I  do 
not  feel  it  necessary  to  review  in  detail  the  cases  which 
more  directly  bear  upon  the  liability  of  a  carrier  of 
passengers.  They  are  quoted  by  Story  as  the  author- 
ities for  the  rule  which  he  lays  down,  and,  in  my  judg- 
ment, they  do  not  carry  the  liability  further  than  he 
has  stated  it.  In  all  of  them,  where  it  has  become 
necessary  to  deflno  that  liability,  the  judges  have  care- 

1  2  Man.  A  O.  2V9.  2  5  IJing.  633. 

318 


CH.  XV.] 


MEANS  OF  TRANSPORTATION. 


§232 


fully  distinguished  between  a  carrier  of  passengers  and 
a  carrier  of  goods,  and  have  pointedly  declared  that 
the  liability  of  the  former  stands  on  the  ground  of 
negligence  alone.^  Undoubtedly  there  are  expressions 
used  in  some  of  those  cases  which,  if  taken  alone  and 
without  reference  to  the  particular  facts,  favor  the  ar- 
gument of  the  plaintiff.  See  per  Lord  Ellenborough, 
in  Israel  v.  Clark  f  Best,  C.  J.,  lircmnrr  v.  Williams  f  and 
per  Gaselee  and  Bosanquet,  JJ.,  in  ><harp  v.  (ircif.*  But 
reading  such  expressions  as  they  should  be  read,  in 
connection  with  and  as  applicable  to  the  facts  of  each 
case,  it  is  to  my  mind  evident  that  the  learned  judges 
who  use<l  them  did  not  intend  them  to  be  understood 
in  the  sense  now  imputed  to  them.  The  decisions  in 
those  cases  in  which  such  expressions  are  used,  seem 
to  me  against  the  plaintilT,  rather  than  decisions  in  his 
favor.  In  Sharp  v.  (ini/,^'  the  case  most  pressed  in  the 
argument  by  the  plaintilT's  counsel,  as  also  in  the  case 
of  Christie  v.  (irif/i/s,''  the  axletree  had,  without  any  ex- 
ternal cause  to  account  for  it,  suddenly  snapped.  If 
there  was  such  a  warranty  as  is  now  insisted  on,  that 
warranty  had  clearly  betHi  broken,  for  the  coach  had 
turned  out  to  be  not  roadworthy.  There  w'as,  there- 
fore, nothing  to  go  to  the  jury  but  the  amount  of 
damages;  whereas,  in  each  case  the  question  was  left 
to  the  jury  Avhether  the  defendant  was  liable  as  guilty 
of  a  want  of  due  care  (>r  not.  In  Sharp  v.  (rrci/,  the 
jury  found  a  verdict  for  the  plaintiff,  which  the  court 
refused  to  disturb;  in  Christie  v.  (irit/tjs,  they  found  for 
the  defendant,  and  no  motion  appears  to  have  been 
made  to  set  this  verdict  aside.  Coming  dovn  to  a  more 
recent  period,  I  find  the  same  doctrines  laid  down  by 

1  See  Aston  r   Hnven,    2    Ksp.   533;  3  i  Cnrr  &  P.  41G. 
Christie  i'.  Griggs,  2  ( 'amp.  79 ;    Crofts  v  *  9  l>inK.  450. 
WntcrlioDse,  3  lUng.  321.  <  9  liing.  4r)'. 

2  4  Ksp.  259.  6  2  Cinnp.  79. 

319 


rp r 


§232 


MEANS  OF  TRANSPORTATION.  [PART  III. 


V,.  u'  ■  .' 
••••'••I*  • 


the  Lord  Chief  Justice  of  this  court  iu  Stokes  v.  Eastern 
Counties  RaiUcuy  Company}  That  was  a  case  exactly 
similar  to  tl>e  present.  The  wheel  had  broken  from  a 
latent  flaw  in  the  welding,  and  great  injury  uad  been 
done  to  several  passengers.  After  a  very  lengthened 
trial,  the  jury  found  a  verdict  for  the  defendants;  and 
although  the  plaintiff  in  that  case,  and  many  other  per- 
sons, were  deeply  interested  iu  questioning  the  ruling 
of  the  Lord  Chief  Justice,  no  attempt  was  made  to  set 
aside  the  verdict. 

"As  far,  therefore,  as  the  autliorltR  •  in  this  country 
go,  they  are  against  the  position  taken  by  the  plaintiff; 
and  eonsideriug  that  nianv  such  accidents  have  oc- 
curred  since  the  introduction  of  raihvays,  the  fact  that 
this  is  the  first  time  so  extensive  a  liability  has  been 
insisted  on,  argues  a  general  impression  against  it. 
But  though  the  question  has  not  before  btM}n  presented 
for  solemn  adjudication  in  this  country,  it  has  been 
raised  more  than  once  in  the  courts  of  the  United 
States,  and  iu  every  case  the  judgment  has  been  in 
favor  of  the  carrier.  In  Iitijulh  v.  liills^-  the  court  de- 
livered an  elaborate  judgment,  reviewing  all  tlie  au- 
thorities, English  and  American,  and  aflirming  tUc 
doctrine  that  a  carrier  of  j)assengers  is  liable  <knly  for 
negligence.  For  these  ivasons,  I  am  of  ojjinion  that  the 
rule  must  be  discharged."  Mellor,  J.,  concurred  witli 
Lush,  J.,  while  the  third  member  of  the  court  (Hlack- 
burn,  J.),  dissented  in  an  elaborate  opini(>n  whi<h  con- 
(hides  as  follows:  "The  question,  therefoiN',  is  dis- 
tinctly raised,  whether  the  obligation  of  the  carrier  of 
l>assengers  to  the  passenger  Is  nu^rely  to  take  every  pre- 
caution to  ])rocure  a  vehicle  reasonably  sufficient  for 
the  service,  whether  by  sea  or  by  land,  in  which  case 
the  direction  was  right;  or  whether  it  is,  as  I  think,  an 

1  2  F.  &  F.  691.  2  9  Mctc.  1 ;  43  Am.  Uec.  346. 

320 


CH.  XV,] 


MEANS  OF  TRANSPORTATION. 


§232 


absolute  obligation,  at  his  peril,  to  supply  one,  or  be 
responsible  for  any  damage  resulting  from  a  defect." 

The  case  was  appealed  to  the  Exchequer  Chamber, 
where,  after  the  case  had  been  again  argued,  the  judg- 
ment of  the  court  (Kelly,  V.  B.;  Byles,  Keating,  and  M. 
Smith,  JJ.;  Ohannell  and  Bramwell,  BB.)  was  delivered 
by  Montague  Smith,  J.,  who  said:  "The  question  in- 
volves the  consideration  of  the  true  nature  of  the 
contract  made  between  a  passenger  and  a  general  car- 
rier of  passengers  for  hire.  It  is  obvious  that  for  the 
plaintiff,  on  this  state  of  facts,  to  succeed  in  this  ac- 
tion, he  must  establish  either  that  there  is  a  warranty 
by  way  of  insurance  on  the  part  of  the  carrier  to  con- 
vey the  passenger  safely  to  his  journey's  end,  or,  as  the 
learne<l  counsel  mainly  insisted,  a  warranty  that  the 
carriage  in  Avhich  he  travels  shall  be  in  all  respects  per- 
fect for  its  purpose, — that  is  to  say,  free  from  all  de- 
fects likely  to  cause  peril,  although  those  defects  were 
.such  that  no  skill,  care  or  for<'sight  could  have  detected 
their  cxislcncc.  Wc  are  of  oi)iuion,  after  consideration 
of  the  authorities,  that  there  is  no  such  contract,  either 
of  general  or  limit<Ml  warranty  ami  insurance,  entered 
into  by  the  carrier  of  ]»assengers,  and  that  the  contract 
of  such  a  carrier,  and  the  obligation  undertaken  by 
him,  are  to  take  due  care  (including  in  that  term  the 
use  of  skill  and  foresight),  to  cairy  a  jKissenger  safely. 
It  of  course  follows  that  tiie  absence  of  such  care — in 
other  words,  negligence — would  alone  be  a  breach  of 
this  contract;  and  as  the  facts  of  this  vane  do  not  dis- 
close MV. -h  a  breach,  and  on  the  coutrarv  negative  anv 
want  of  skill,  care,  or  foresight,  we  think  the  plaintiff 
has  failed  to  sustain  his  action,  and  that  the  judgment 
of  the  c(Mirt  below,  in  favor  of  the  defendant,  ought  to 
be  allirmed. 

"The  law  of  England  has,  from  the  earliest  times,  es- 
22  321 


nf— ^ 


§232 


MEANS  OF  TRANSPORTATION.  [PART  III. 


r'P 
«••• •• 


tablished  a  broad  distinction  between  the  liability  of 
common  carriers  of  goods  and  of  passengers.  Indeed, 
the  responsibility  of  the  carrier  to  re-deliver  the  goods 
in  a  sound  state  can  attach  only  in  the  case  of  goods. 
This  responsibility  (like  the  analogous  one  of  inn- 
keepers), has  been  so  long  fixed,  and  is  so  universally 
known,  that  carriers  of  goods  undertake  to  carry  on 
contracts  well  understood  to  comprehend  this  implied 
liability.  If  it  had  not  been  the  custom  of  the  realm, 
or  the  common  law  declared  long  ago,  that  carriers  ot 
goods  should  be  so  liable,  it  would  not  have  been  com- 
petent for  the  judges  in  the  present  day  to  have  im- 
ported such  a  liability  into  their  contracts  on  reasons 
of  supposed  convenience.  «  •  #  "pjie  court  is 
now  asked  to  declare  the  same  law  to  be  applicable  to 
contracts  to  carry  passenger.s.  The  learned  counsel  for 
the  plaintiff  felt  the  difficulty  of  the  attempt  to  apjily 
the  entire  liability  of  the  carrier  of  goods  to  the  carrier 
of  passengers,  but  he  contendtnl  for  and  mainly  relied 
on  the  proposition  that  there  was  at  least  a  warranty 
that  the  carriage  in  Avhich  the  passenger  travelled  was 
roadworthy,  and  that  the  liability  of  the  carriers  of 
goods  in  this  respect  ought  to  be  imported  into  the  con- 
tract with  the  passenger.  Itut  first,  it  is  extremely 
doubtful  whether  such  warranty  can  be  predicated  to 
exist  in  the  contract  of  a  common  carrier  of  goods. 
His  obligation  is  to  carry  and  re-deliver  the  goods  in 
safety,  whatever  happens.  In  the  words  of  Lord  I  loll, 
*he  is  bound  to  answer  for  the  goods  at  all  events.' 
Again,  'The  law  charges  this  person  thus  entruste<l 
to  carry  goods  against  all  events  but  acts  of  (Jod  and 
of  the  enemies  of  the  king.'  And  this  broad  obligaticm 
renders  it  unnecessary  to  import  into  the  contract  a 
special  warranty  of  the  roadworthiness  of  the  vehicle; 
for  if  the  goods  are  safely  carried  and  re-delivered,  it 
322 


CH.  XV.] 


MEANS  OF  TRANSPORTATION. 


§232 


would  be  immaterial  whether  the  carriage  was  road- 
worthy  or  not;  and  if  the  goods  are  lost  or  damaged, 
the  carrier  is  liable  on  his  broad  obligation  to  be  an- 
swerable *at  all  events,'  and  it  is  unniecessary  to  in- 
quire hoAv  that  loss  or  damage  arose. 

^But,  however  that  ma}'  be,  it  is  difficult  to  see  upon 
what  principle  the  contract  of  the  carrier  of  goods, 
which  on  the  hypothesis  does  not  apply  in  its  entirety 
to  carriers  of  passengers,  is  to  be  dissected,  and  a  par- 
ticular part  of  it  severed  and  attached  to  what,  on  the 
hypothesis,  is  another  and  diU'orent  contract.  It  was 
contended  that  the  reason  Avhich  made  it  the  policy 
of  the  law  to  impose  the  wider  obligation  on  the  car- 
riers of  goods,  applied  with  equal  force  to  impose  the 
limited  warranty  of  the  soundness  of  the  carriage  in 
favor  of  the  passenger.  The  reason  suggested  was,  as 
we  understood  it,  that  a  passenger,  when  place<l  in  a 
carriage,  was  as  helpless  as  a  bale  of  goods,  and  there- 
fore, entitled  to  have  for  his  personal  safety,  a  war- 
ranty that  the  carriage  was  sound;  but  this  is  not  the 
reason,  or  anything  like  the  reason,  given  by  Lord  EEolt 
for  the  liability  of  the  carrier  of  goods.  The  argument 
founded  on  this  reason,  however,  would  obviously  carry 
the  liability  of  the  carrier  far  beyond  the  limited  war- 
ranty of  the  roadworthiness  of  the  carriage  in  which 
the  passenger  happened  to  travel.  His  safety  is,  no 
doubt,  deiM'udent  on  the  soundness  of  the  carriage  in 
which  he  travels;  but  in  the  rase  of  a  passenger  on  a 
railway,  it  is  no  less  dependent  on  the  roadwor- 
thiness of  the  other  carriages  in  the  same  train,  and  of 
the  engine  drawing  them,  on  the  soundness  of  the  rails, 
of  the  points,  of  the  signals,  of  the  masonry,  in  fact, 
of  all  the  different  parts  of  the  system  employed  and 
used  in  his  transport,  and  he  is  equally  helpless  as 
regards  them  all.     If,  then,  there  is  force  in  the  above 

323 


mmw 


§232 


MEANS  OF  TRANSPORTATION.  [PAKT  III. 


ym-,    ■    J 

;.':J 


.:! 


t.!  -  I' 


r — 

-•  -a.  H 


iM?ason,  why  stop  short  at  the  carriajfe  in  which  tho 
passenger  happens  to  travel?  It  surely  has  equal  force 
as  to  all  these  things,  and,  if  so,  it  must  follow  as  a 
consequence  of  the  argument  that  there  is  a  warranty 
that  all  these  things  .should  be  and  remain  absolutely 
sound  and  free  from  defects.  This,  which  appears  to 
be  the  necessary  consequence  of  the  argument,  al- 
though Mr.  Mainsty  disclaimed  the  desire  to  pn^s  it 
so  far,  tries  the  value  of  it.  But  surely,  if  the  law 
really  be  as  it  is  now  contended  to  be,  it  would  have 
been  so  declariMl  long  ago.  No  actions  have  been  more 
frequent  of  late  years  than  those  against  railway  com- 
panies in  respect  of  injuries  sustained  by  passengers. 
Some  of  these  injuries  have  been  caused  by  accidents 
arising  from  defects  or  unsoundness  in  the  rolling- 
stock,  others  from  defects  in  the  permanent  works. 
Long  inquiries  have  taken  place  as  to  the  causes  of 
these  defects,  and  whether  they  w<»re  due  to  want  of 
care  and  skill,  and  these  inquiries  would  have  been 
altogether  immaterial  if  warranties  of  the  kind  now 
contended  for  formed  part  of  the  contract.  An  obli- 
gation to  use  all  due  and  pro])er  care  is  founded  on 
reasons  obvious  to  all,  but  to  impose  on  the  carrier  the 
burden  of  a  warranty  that  everything  he  necessarily 
uses  is  absolutely  free  from  defects  likely  to  cause  jM'ril, 
when,  from  the  nature  of  things,  defects  must  exist 
which  no  skill  can  detect,  an<l  the  effects  of  which  no 
care  or  foresight  can  avt^rt,  would  be  to  compel  a  man, 
by  implication  of  law  and  not  by  his  own  will,  to 
promise  the  performance  of  an  impossible  thing,  and 
would  be  directly  opposed  to  the  maxims  of  law,  Lv.v 
lion  cofjit  ad  iiiiponnihiliii,  yvnio  ivnrtur  ad  imposnibUia.  If 
the  principle  of  implying  a  warranty  is  to  [)revail  in 
the  present  case,  there  seems  to  be  no  good  reason 
why  it  should  not  be  equally  applied  to  a  variety  of 
324 


en.  XV.] 


MEANS  OF  TRANSPORTATION. 


§232 


other  cases — as,  for  instance,  to  the  managers  of  thea- 
ters and  other  places  of  public  resort,  who  provide  seats 
or  other  accommodation  for  the  public.  Why  are  they 
not  to  be  equally  held  to  insure  by  imi)lied  warranty 
the  soundness  of  the  structures  to  which  they  invite 
the  public?  But  we  apprehend  it  to  be  clear  that  such 
persons  do  no  more  than  undertake  to  use  due  care  that 
their  buildings  shall  be  in  a  lit  state.  ♦  *  *  War- 
ranties implied  by  law  aiv  for  the  most  part  founded 
on  the  presumed  intention  of  the  parties,  and  ought 
certainly  to  be  founded  on  reason,  and  with  a  just  re- 
gard to  the  interests  of  the  party  who  is  supposed  to 
give  the  warranty,  as  well  as  of  the  party  to  whom 
it  is  supposed  to  be  given.  We  have  already  gone  fully 
into  the  reasons  for  hohling  that,  in  our  opinion,  the 
warranty  contended  for  in  this  ca«e  is  not  so  founded. 
On  the  other  hand,  it  seems  to  be  perfectly  reasonable 
and  just  to  hold  that  the  obligation  well-known  to  the 
law,  and  which,  because  of  its  reasonableness  and  ac- 
cordance with  what  men  perceive  to  be  fair  and  right, 
has  been  found  applicable  to  an  infinite  variety  of 
cases  in  the  business  of  life,  viz.,  the  obligation  to  take 
due  care,  should  be  attacheil  to  this  contract.  We  do 
not  attempt  to  define,  nor  is  it  necessary  to  do  so,  all 
the  liabilities  which  the  obligation  to  take  due  care 
imposes  on  the  carriers  of  passengers.  Nor  is  it  neces- 
sary, inasmuch  as  the  case  negatives  any  fault  on  the 
part  of  the  manufacturer,  to  determine  to  what  extent, 
and  under  what  circumstances  they  may  be  liable  for 
the  want  of  care  on  the  part  of  those  they  employ  to 
construct  works,  or  to  make  or  furnish  the  carriages 
and  other  things  they  use.  *Due  care,'  however,  un- 
doubtedly means,  having  reference  to  the  nature  of  the 
contract  to  carry,  a  high  degree  of  care,  and  casts  ou 
carriers  the  duty  of  exercising  all  vigilance  to  see  that 

325 


'm 


§232 


MEANS  OF  TRANSPORTATION.  [PART  Iir, 


-  »*  «■       • 


r   ' " 


r- ",'  1 

..-.<r 


whatever  is  required  for  the  safe  conveyance  of  their 
I>assenger8  is  in  fit  and  proper  order.  But  the  duty  to 
take  due  care,  however  widely  construed  or  however 
rigorously  enforced,  will  not,  as  the  present  action 
seeks  to  do,  subject  the  defendants  to  the  plain  injus- 
tice of  being  compelled  by  the  law  to  make  reparation 
for  a  disaster  arising  from  a  latent  defect  in  the  nia- 
chinerj'  which  they  are  obliged  to  use,  which  no  human 
skill  or  care  could  either  have  prevented  or  detected. 
In  the  result,  we  come  to  the  conclusion  that  the  case 
of  the  plaintiff,  so  far  as  it  relies  on  authority,  fails  in 
precedent;  and  so  far  as  it  rests  on  principle,  fails  in 
reason.  Consequently,  the  judgment  of  the  Court  of 
Queen's  Bench  in  favor  of  the  defendants,  will  be  af- 
tirjned." 

The  well-settled  American  d(K'trine  is  summed  u]) 
by  Mr.  Justice  Harlan,  in  J'rniisi/Iraiiia  Ifailroad  Com- 
pany V.  />*o?/,'  in  these  words:  "The  carrier  of  pas- 
sengers is  responsible  for  injuries  received  by  passen- 
gers in  the  course  of  their  transportation,  which 
might  have  been  avoided  or  guarded  against  by  the 
exercise,  on  his  part,  of  extraordinary  vigilance,  aided 
by  the  highest  skill.  And  this  caution  and  vigilance 
must  ni^cessarily  be  extended  to  all  agencies  or  means 
employed  by  the  carrier  in  the  transportation  of  the 
passenger.  Among  the  duties  resting  upon  him,  is  the 
important  one  of  i)roviding  cars  or  vehicles  adequate, 
that  is  sufHciently  secure,  as  to  strength  and  other 
requisites  for  the  safe  conveyance  of  i)assengers.  That 
duty  the  law  enforces  with  great  strictness.  For  the 
slightest  negligence  or  fault  in  this  regard,  from 
which  Injury  results  to  the  passenger,  the  carrier  is 
liable  in  damages.''^      And  this  extends  to  all  appli- 


1  102  U.  S.  436. 

2  Uegeman  f.  H.  Co.,  13  N.  Y.  9;  64 

326 


Am.  Dec.  (517;  Curtis  f.Oo.,  18  N.  Y.  5.'}4; 
74  Am.  Dec.  268 ;  Smith  r.  U.  Co., 29  Barb. 


CH.  XV.] 


MEANS  OF  TRANSPORTATION. 


§233 


ances  for  transportation.  lie  is  not  liable  for  latent 
defects  which  careful  examination  would  not  have  re- 
vealed,* but  he  is  liable  if  the  defect  could  have  been 
discovered  by  any  test  known  to  a  man  skilled  in  the 
business  of  manufacturing  such  vehicles,-  and  it  is  not 
material  that  any  or  all  skillful  manufacturers  had,  up 
to  the  time  of  the  accident  in  question,  omitted  certain 
known  test^,  the  use  of  which  would  have  prevented 
the  accident.'' 

The  responsibility  of  the  carrier  extends  as  well  to 
things  inside  the  vehicle  as  to  its  running  parts;  as  for 
example,  where  a  lamp  shade  fell  from  a  lamp  hang- 
ing in  the  car,  the  carrier  was  held  liable;*  and  as  the 
passenger  is  entitled  to  be  comfortably  carried,  want 
of  care  in  heating  a  car  whereby  a  passenger  takes  cold, 
is  ground  for  an  action  for  damages." 

§  233.  Duty  as  to  Roadway.  — A  railroad  which 
carries  passengers  is  as  responsible  for  the  state 
of  the  rails  and  bridges,  the  condition  of  the  road  bed, 
and  the  like,  as  it  is  for  the  safe  construction  and  keep- 
ing of  the  cars."  It  is  not  liable  for  an  injury  hap- 
pening through  latent  defects  in  its  roadway,  bridges, 
or  other  permanent  structures,  where  it  has  bestowed 


132;  19N.  Y.  13;  St.  Tx)nis  etc.  U.  Co.  v. 
Vclarms,  ."ie  Ind.  511;  I.a  Harem  t-.K.  Co., 
11  Allen,  312;  Americas.  S.  ro.r.  I-an- 
dreth,  102  Pa.  St.  LSI ;  Smith  t:  British  etc. 
Co,.8GN.  Y.  408;  Cincinnati  etc.  K.  Co. 
r.  Walroth,  38  Ohio  St.  411 ;  McPadden 
f.  U.  Co.,  44  N.  Y.  478;  Grand  etc.  R.  Co. 
r.  ]Joyd,G51nd.  325;  Costello  f.  R.  Co., 
68  Ttarb.  92 ;  Toledo  etc.  K.  Co.  r.  Ueggs, 
88ni.80;  Robinson  V.  R.  Co.,  20  Ulatchf. 
JJ38. 

1  Peoria  etc.  R.  Co.  v.  Thompson,  66 
ni.l38;  Meier  f.  R.  Co.,  64  Pa.  St.  226; 
3  Am.  Rep.  581;  Ingalls  t'.  Rills, 9. Met. 
1;  43AmDec.346;  Pbila.  etc.  R.  Co.  v. 
Thompson,  66  111.  136;  Ladd  r.  R.  Co., 
119  Mais.  412;  20  Am.  Rep. 331;  Yerkesv. 


Keokuk  etc.  Co.,  7  SFo.  (A pp.)  265;  Had- 
Icyr.  Cross,  34  Vt.r.86. 

2  Ileeeman  r.  R.  Co.,13N.  Y.9;  64  Am. 
Dec.  617. 

3  Curtis  t'.  Now  Jersey  Steam  Co.,  47 
N.  Y.  282. 

*  Whiter.  R.  Co.,11  N.E.Rep.  (Mass.) 
552. 

6  Bryan  v.  R.  Co.,  32  Mo.  (App.)  228. 

6  Hanley  r.  R.  Co.,  Edm.  Sel.  Cas.  359; 
Tyrrell  v.  R.  Co.,  Ill  Mass. 546;  McKlroy 
V.  R.  Co..  4  Cash.  400;  50  Am.  Dec.  794; 
McPadden  v.  R.  Co.,  44  N.  Y.  478;  4  Am. 
Rep.  705 ;  Louisville  etc.  R.  Co.  v.  Pediso, 
108  Ind.  491 ;  8  N.  E.  Rep.  627 ;  Union  Pac. 
R.  Co.  r.  Hand,  7  Kas.  380 ;  Nashville  etc. 
R.  Co.  V.  Messino,  1  Sneed,  320;  Virginia 
etc.  R.  Co.  r.  Sanger,  15  Gratt.  230. 

327 


4iit 


■«ii 


w^^ 


§234 


MEANS  OF  TRANSPORTATION.  [PART  III. 


c. :- 


*%• 

ft* 

.ft 

4"l« 

»•'«• 

«rv 

ri 

'1 

:;;» 

;3 

C.' 

::» 

r 


r;:r 


the  highest  measure  of  care  upon  the  construction,  the 
inspection,  and  the  reparation  of  them.'  Nor  is  it 
liable  for  their  being  washed  away  or  undermined  by 
a  violent  storm  whose  effects  it  could  not  have  pro- 
vided against.^  So  a  railroad  must  employ  the  highest 
care  and  diligence  in  guarding  its  track  and  keeping 
it  free  from  obstructions.^ 

§  234.    Duty  as  to  Receiving^  and  Landing  Places. 

— The  carrier  is  bound  also  to  use  the  same  high  degree 
of  care  to  keep  in  a  safe  condition  all  portions  of  his 
platforms,  and  approaches  thereto,  and  all  portions  of 
his  station-grounds  reasonably  near  to  the  platforms, 
where  passengers,  or  those  who  have  purchased  tickets 
with  a  view  to  take  passage  on  hi.s  cans,  or  passen- 
gers using  them  during  the  transit,  or  leaving  the 
cars  are  likely  to  go.^  This  duty  has  not  been  ])t'r- 
formed  where  snow  or  ice  is  allowed  to  accumulate 
upon  the  platfonn,''  or  the  platform  is  dangerously 
higher  than  the  car  steps,"  or  not  properly  liglited  at 
night,^  or  there  are  holes  in  it,  into  which  the  pas- 


1  Hanley  I".  R.  Co.,  Edra.  Scl.  Cae.  359; 
McPadden  v.  R.  Co.,  44  N.  Y.  478;  4  Am. 
Rep.  705;  DonglasBr.  Champlain  Trans. 
Co.,  60  N.  Y.  1;  Cochran  r.  North  Shore 
etc.  Ferry  Co., 60  N.  Y.  6S6. 

2  Ellett  r.  R.  Co.,  76  Mo.  518;  Phila. 
etc.  R.  Co.  r.  Anderson,  04  I'a.  St.  351 ;  39 
Am.  Rep.  7S7;  Railroad  Co.  v.  Halloran, 
53  Tcs.  40 ;  .S7  Am.  Rep.  744 ;  Urehm  v.  R. 
Co.,  84  Barb.  256. 

3  VirKinia  etc.  R.  C.  r.  Sanger,  15 
Gralt.  230. 

4  McDonald  r.  R.  Co.,  2G  Iowa  126;  96 
Am.  Dec.  114 ;  29  Iowa  170 ;  Liscomb  f.  R. 
Co.,6Lan8.  75;  Ilulbertf.  R.  Co.,  40  N. 
Y,  145;  Knight  r.  R.  Co.,  66  Me.  234;  96 
Am.  Dec.  449;  Lonisville  etc.  R.  Co.  r. 
Wo'fe,  80  Ky.  82 ;  Van  Ostran  r.  R.  Co., 
85  Hnn.  590;  Ca»<well  r.  R.  Co.,  98  Mas.<:. 
194 ;  93  Am.  Dec.  151;  New  York  etc.  R. 
Co.r.  Doane,  115  Ind.  435:  7  Am.  St.  Rep. 
451;  17  N.  E.  Rep.  91.H;  Reed  r.  Axtell, 
84    Va.  231;     4  S.  E.  Rep.  587;    Clusa- 

328 


man  r.  R.  Co.,  9  Hnn.  CIS;  Montgomery 
etc.  R.  Co.  f.  Horing,  51  (Ja.  5S2;  Toledo 
etc.  R.  Co.  r.  Crush,  67  111.  262 ;  Tobin  r. 
R.  ro.,59Me.  183;8  Am.  Rep.  415;  Wes- 
ton r.  R.  Co.,  73  N.  Y.  595;  Hcardr.  K. 
Co.,  48  Vt.  101 ;  I'enn.  R.  Co.  f.  Hender- 
son, 51  I*a.  St.  315 ;  McKone  v.  R.  Co.,  51 
Mich.  601;  17  N.  W.  Rep.  74;  IJrassell  r. 
R.  Co.,  84  N.  Y.  241 ;  Dobiecki  v.  .Sharp,  88 
N.  Y.  203;  Chicago  etc.  R.  Co.  f.  Scales, 
90  III.  586;  St.  Lonis  etc.  R.  Co.  v.  Can- 
trell..37Neb.519. 

»  Weston  f.  R.  Co.,  10  Jones  &  .s.  15fi; 
Seymour  r.  R.  Co.,  3  Hiss.  43;  Memphis 
etc.  R.  Co.  f.  Whitfield,  44  Miss.  46G;7 
Am.  Rep.  697. 

6  Turner  r.  R.  I'o.,  37  \a.  Ann.  648;  56 
Am.  Rep.  514. 

^  Stewart  r.  R.  Co.,  .^S  Tex.  289;  37  Am. 
Rep.  7.53;  Nicholson  r.  R.  Co.,  3  H.  A  ('. 
534;  Forsyth  v.  R.  Co.,  103  Mass.  5Kl; 
Jamison  v.  K.  Co.,  S.')  Citl.  573;  (juaife 
V.    R.     Co.,     48     Wis.    613;     4    N.     W. 


CU.  XV.] 


MEANS  OF  TRAXSPOETATION. 


§234 


senger  steps  or  fulls,'  or  obstructions  of  any  kind,-  or 
trains  are  permitted  to  pass  over  tracks  which  passen- 
gers are  obliged  to  cross  to  reach  the  cars,''  or  passen- 
gers are  obliged  to  cross  other  trains  to  reach  the  one 
required;^  or  articles  are  permitted  to  be  thrown  on  the 
piatform  from  passing  trains,"'  or  any  part  of  a  moving 
train  projects  over  the  platform.''  Where  passengers 
are  compelled  to  cross  tracks  to  reach  or  leave  trains, 
the  railroad  must  see  to  it  that  they  can  do  so  in  safety.' 
As  illustrations  of  cases  where  one  may  be  injured  on 
the  carrier's  platform  without  the  carrier  being  re- 
sponsible because  no  negligence  appears,  may  be  cite<l 
one  where  a  weighing  machine  stood  on  the  plat- 
form, the  foot  of  Avhich  projected  six  inches  above  its 
level,  and  a  person  was  pushed  against 't  by  the  crowd 
and  was  injured,  and  it  was  shown  that  it  had  stood 
there  for  five  years  and  done  no  harm;*'  another  where 
the  steps  leading  from  the  station  were  edged  with 
brass,  and  a  passenger  slipped,  although  others  ha«l 
used  the  same  stairs  for  months  without  injury;"  an- 


Bep.  658;  Peniston  v.  U.  Co.,  34  La. 
Ann.  777;  44  Am.  Kcp.  44 »;  Stewart  t: 
E.  Co.,  53  Tex.  289 ;  37  Am.  Hep.  753 ;  Pat- 
ten r.  It.  Co.,  32  Wis.  624 ;  86  Id.  413 ;  Dice 
f.  Willnmotte  Co.,  8  Oreg.  60;  34  Am. 
Kcp.  375;  Osborn  v.  Union  Ferry  Co.,  53 
narb.  fiJO;  Uennecker  f.  U.  Co.,20S.  C. 
21!i;I!t!anif.  U.  Co.,  48  Vt.  101 ;  Buenc- 
maa  r.  U.  Co.,  32  Minn.  370;  20  N.  W. 
Rep.  370. 

1  KniK'htf.  n.  Co.,  56  Me.  234;  96  Am. 
Dec.  441);  ChicnKO  etc.  K.  Co.  r.  Fillmore, 
67  111.  205 ;  Liscomb  v.  K.  Co.,  6  I.ans.  76. 

2  Oiiborn  t'.  Union  Ferry  Co.,  63  ISarb. 
629;  Martin  v.  11.  Co., 16  C.  B.  179;  Nichol- 
son f.  It.  Co.,  3  C.  &  II.  5.34. 

3  Halt.  etc.  R.  Co.  v.  State,  60  Md.  449; 
Klein  r.  Jewett,  2G  N.  .1.  (Kq-)  474. 

4  Keating  r.  R.  Co.,  3  Lans.  469. 

»  Carpentcrr.R.ro.,97N.Y.  494;  49 Am. 
Rep.  640;  Snow  v.  R.  Co.,  136  Mass.  40;  49 
Am.  Rop.  4(1;  Jefferson  etc.  R.  Co.  r. 
Riley,  34  Ind.  BC8;  Toledo  etc.  R.  Co.  v. 
Maine,  67  111.  298. 


0  Dobiecki  r.  Sharp.  89  N.  Y.  403;  Ijin- 
gan  V.  R.  Co.,  72  Mo.  392;  Chicago  etc.  R. 
Co.  V.  Wilson,  63  111.  167. 

7  Penn.  R.  Co.  v.  Zebe,  33  Pa.  St.  318; 
Klein  r.  Jewett,  26  N'.  J.  Kcj.  474 ;  Chicago 
etc.  R.  Co.  I'.  Wilson,  63  111.  167;  Arm- 
strong r.  R.  Co.,  66  Barb.  4.37;  64  N.  V. 
635;  Keller  r.  R.  Co.,  24  How.  Pr.  172; 
Whalen  v.  R.  Co.,  60  Mo.  323 ;  State  v.  R. 
Co.,  68  Me.  176;  4  Am.  Rep.  258;  Dublin 
etc.  R.  Co.  V.  Slattery,  3  Ir.  App.  Gas. 
1155 ;  I.  R.  10  C.  L.  250 ;  I.  R.  8  C.  L.  631 ;  39 
L.  T.,X.  S.,2G5;19Alb.  I..  J.  70;  Terry  r. 
Jewett,  78  N.  Y.  338;  I'.rasscll  v.  R.  Co., 84 
N.  Y.  241 ;  Warren  r.  R.  Co..  8  Allen  227; 
Gaynorf.  R.  Co.,  100  Mass.  208;  Chaffee 
V.  R.  Co.,  104  Mass.  108;  Green  v.  R.  Co., 
11  Hnn.  333 ;  Bait.  etc.  R.  Co.  v.  State,  60 
Md.  449. 

8  Cornraan  l:  R.  Co.,  4  H.  &  N.  781;  29 
L.  J.  (Kq.)  94. 

8  Craftcr  v.  R.  Co.,  I..  R.  1  0.  P.  300; 
Cochran  v.  North  Slioro  Ferry  Co.,  56  N. 
Y.  G5G;  Rennecker  v.  R.  Co.,  20  S.  O.  219. 

H2i) 


r 


§236 


MEAX9  OF  TUANSPOUTATION. 


[I'AltT  III. 


^•(   -IK 

* i 


other  where  a  straj'  ilog  on  the  platform  bit  a  passen- 
ger;' another  where  a  man  driving  a  sled  off  a  ferry 
boat,  strnck  an  uneven  surface  on  the  boat,  which 
Btopped  the  sled  with  a  jolt  and  did  danuige;-  another 
Avhere  a  girl  tripped  over  the  rail  as  she  was  crossing  tlic 
tracks.^  In  all  these  cases,  the  reason  for  not  holding 
the  carrier  liable  was  that  it  was  but  reasonable  to 
anticipate  no  mischief  would  arise,  since  none  had  re- 
sulted under  the  s-ime  circumstances  for  a  long  period. 

§  235.  Duty  to  Adopt  New  Inventions  lor 
Safety.  — The  high  degree  of  care  required  of  the  car- 
rier nmkes  it  necessary  for  him  to  adopt,  so  far  as  is 
practicable,  the  latest  improvements  in  his  means  of 
transportation,  which  luive  been  found  by  experi(»n<'e 
well  adapteu  to  increase  the  safety  of  his  i)assengers. 
And  this,  it  is  said,  is  especially  true  when  he  under- 
takes to  carry  passengers  by  the  dangerous  agency  of 
steam.^  Where  the  limit  of  this  duty  lies  must,  in 
general,  be  a  question  of  fact  for  the  jury,'^'  A  car- 
rier is  not  bound  to  adopt  a  new  and  improved  method 
because  safer  or  better  than  the  methods  already  em- 
ployed by  him,  if  it  is  not  requisite  to  the  irasoiiah c 
safety  or  convenience  of  his  passengers;  and  if  tlie  v\- 
]>ense  is  excessive,  the  cost  of  such  improved  method 
may  be  a  sufficient  reason  for  refusing  to  adopt  it." 

§  236.     Responsibility  for  Negligence  of  ^^ 
facturer  or  Contractor. — Hence,  the  law  is,  ne 

carrier  is  bound  to  use  the  most  exact  diligeii  and 
is  answerable  for  any  negligence,  however  slight. 
And  this  is  true,  not  only  of  a  default  which  is  due  to 


. 


1  Smith  t'.  R.  Co.,  L.  U.  2  C.  P.  i. 

2  Lo  liarron  i>.  Kast  Boston  Ferry  Co., 
11  Allen  312. 

3  Potter  V.  n.  Co.,  92  N.  C.  641. 

4  Thomp.  Carr.  Pass,  215;    Patt.    lly. 

330 


Ace.  Iv.  224;  Meier  r.  R.  Co..  64 Pa.  St.  225. 

«  Hogeman  v.  U.  Co.,  supra. 

0  Le  liarron  v.  Kast  Koston  Ferry  Co., 
11  Allen  312;  Taylor  v.  U.  Co.,48N.  H.316. 


oil.  XV.] 


MEANS' OF  TRANSPORTATION. 


236 


tho  carrior  hinisolf,  but  of  any  default  of  thoso  om- 
ployod  by  him,  or  of  those  from  whom  he  has  pur- 
chased auythinj^  whicli  he  uses  in  the  conveyance  of 
passengers,  and  which,  from  a  wane  of  skill  in,  its 
construction,  may  cause  injury  to  any  of  the  carrier's 
passengers.'  It  is  not  enough  that  the  manufacturer 
from  whom  the  carrier  purchases  his  vehicles  or  ap- 
jdiances,  or  the  contractor  who  builds  his  bridges,  or 
lays  his  track,  was  reputed  to  sell  only  the  best  goods 
or  to  do  only  the  best  work;  what  is  re(iuire<l  is  not 
only  that  he  had  capacity,  but  that  he  exercised  it  in 
the  particular  instauce.- 


1  TJrowncParr.,  §  400;  Hegemanv.  I!. 
('o.,i:i  N.  V.!i;"i4  Am.  Dec.  617;  Clihl- 
wull  r.  Stciiin.  Co.,  47  N  V.  Wi  ;  f  iirroll 
r.  n.  ('o.,nH  N.  Y.  r.'ii;  17  Am.  Hep.  '.'21 ; 
liurnsr.  i:.  ('o.,I.  I{.  i:t  C.  1,.,  N.  S.  ,M:t; 
I'rancis  r.  Cockrcll.  I,.  U.  6  (J.  r..  IHJ; 
(Jurti.tr.  U.  Co.,  1H\.  V.  B.IH;  75  Am.  DfC. 
23S;rcrkiiis  r.  U.  Co.,  24  N.  Y.  2l>,t;S2 
Am.  Dec.  281;  ISisscll  v.  U.  Co.,  •i.^2  N.  Y- 
44."> ;  »2  Am.  Uuv.  M'.i ;  Brown  v.  U.  Co., 34  N. 


Y.  408;  ."tcinweg  c.  K.  Co..  43  N.  Y.  123 ;,1 
Am.  Uep.  C7.S;  I'itts.  etc.  K.  Co.  v.  Nelson, 
r)l  Intl.  l.V);  111.  Cent.  K.  Co.  r.  I'liillips, 
4'J  111.  2.34;  ooH<ni,  (iniml  Itiipids  U.  Co.  r. 
IInnllcy,.38Micli.  037;  31  Am.  IJo;).  321 ; 
NaBhvillo  etc.  U.  Co.  r.  Jones,  9  Ilcisk. 
27,  cftses  often  criticised  and  con- 
demned. Ste  Hatch.  ('arr.,§512;  Thomp. 
Carr.  I'ass.  221 ;  also  31  Am.  Hep.  324. 
^  Uegeman  v.  U.  Co.,  lupra. 

331 


CHAPTER  XVI. 


THE    CONTRACT   OF   CARRIAGE. 


C."> 


c 

'•••# 

'm- 

T* 

^i 

*  i« 

<>«••• 

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aCfv 

■•  <• 

C^-f 

1 

1 

C' 

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r  • 


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Section  237.  Time  Tables  as  General  Offer.-. 

238.  Offer  Turned  into  Contract  hy  rurchaso  of  Ticket. 

239.  Lial)ility  for  not  Running  atcording  to  Time  Table. 

240.  Tickets  as  Contracts. 

241.  Ticket  gooil  for  Continuous  Trip. 

242.  Limitations  as  to  Time. 

243.  Assi}inal)ility  of  Ticket. 

244.  Ticket  Conclusive  of  Passenger's  Rights. 

246.  Limiting     Liability     for     Negligence  —  as     to     Paying 
I'assengers. 

246.  Duty  towards  Free  or  Paying  Passenger  tli  -  same. 

247.  Wiio  are  Free  Passenger.s. 

248.  Limiting  Lial)ility  for  Negligence — as  to  Free  Passengers. 
24u'.  Arguments  in  .Support  of  tlie  Different  Views. 

250.  Special  Contracts  with  Passengers. 

§  237.  Time  Tables  as  General  Offers.  —Two 
views  of  the  status  of  a  railroad  time  table  are  to  be 
found  iu  the  adjudj':('d  cases;  on*'  tliat  its  publieatio!'. 
and  distribution  to  the  i)ublie  is  an  offer  addressed 
to  all  intendinj:;  ])asseng(r  ,  which,  by  the  purcha.se  of 
a  ticket,  or  the  tender  of  the  lejjal  fare  becomes  an 
absolute  contract  between  the  carrier  and  the  j)as.scn- 
ger;  the  other  that  it  is  only  a  representation  to  the 
public  that  the  company's  trains  ordinarily  run  at  the 
times  stated,  and  that  the  company  will  use  due  care 
and  diligenie  to  carry  out  the  rei)resentation,  but  that 
it  does  not  import  an  absolute  an<l  un(  (tnditional  en- 
gagement for  such  arrival  and  departure,  an<l  does  not 
make  the  carrier  liable  for  want  of  punctuality  which 
is  not  attributable  to  his  negligence.  Th<'  application 
of  the  first  view  would  make  the  company  absolutely 
3:^2 


CII.  XVI.] 


THE  CONTRACT  OF  CARRIAGE. 


§237 


liable,  and  no  defense  of  accident  or  the  act  of  God, 
or  causes  beyond  the  carrier's  control  would  be  admis- 
sible— for  it  is  an  elementary  principle  of  the  law 
of  contracts  that  one  who  promises  absolutely  and  un- 
conditionally, is  bound  absolutely  and  uncondition- 
jilly.'  Drntoii  v.  (I'rvat  Xorthcrn  Railroad  Company,-  is 
the  leading  case  in  support  of  the  first  view.  There 
the  defendant's  time-table  advertised  that  a  certain 
train  would  leave  London  at  a  certain  time  a  'I  arrive 
at  other  stations  along  the  route  at  specitirJ  times. 
The  plaintiff  went  to  the  station  at  the  advertised  time 
intending  to  take  passage,  demanded  a  ticket  from  the 
clerk  and  tendered  the  price  of  it,  but  as  the  train  had 
been  taken  off,  the  clerk  refused  to  issue  the  ticket. 
In  an  action  against  the  company,  Campbell,  C.  J.,  said: 
"It  seems  to  me  that  railways  would  not  be  that  bene- 
fit and  accommodation  to  the  public  which  we  find 
tlicin  to  b(»,  if  the  representations  made  in  their  time- 
tables are  to  be  treated  as  so  much  waste  paper,  and 
not  considered  as  the  foundation  of  a  contract.  I 
think  the  plaintiff  is  entitled  to  recover,  both  on  the 
ground  that  there  was  a  contract,  and  also  for  a  false 
representation.  I  think  there  was  a  binding  contract, 
and  tliat  the  case  is  the  same  as  if  the  company  should 
])iiblish  in  express  terms,  that  if  customers  would  come 
to  a  particular  station  at  a  particular  hour,  a  train 
would  be  passing  at  that  hour,  or  near  the  hour, 
and  that  any  person  who  tendered  his  fare  should 
have  a  ticket,  and  be  carried  from  that  station 
*o  some  other  given  station."  One  judge  dissented 
from  the  judgment  of  the  chief  justice,  and  it  is  to  be 
observed  that  the  evidence  showed  that  tlie  time-table 
had  been  i)ublislied  after  the  train  had  been  discon- 


1  I.UU  sun  ("oiilr.  §  4'.'il. 

*  6  K.  &  It.  8ti0,  anil  sco  Ilawcrott  r.  U. 


Co.  H  Kdr.  1..  A  K(|.aG2;  Uainlinr.  R.Co., 
1  II.  A  N.  4UH. 

333 


r^ 


§237 


THE  CONTRACT  OF  CARRJ \GE.  [PART  III. 


c:  *:> 


c. 

.-■« 

•••*■ 

T* 

-^'t 

«■>• 

«■« 

-r;n. 

•1* 

.^■t 

..., 

/ 

J 

c » ■-* 


r 


::.x : 


tinued,  and  that  the  railroad  was,  tlieroforo,  liable, 
independent  of  any  contract,  for  falsely  representing 
that  a  train  would  start  when  it  knew  it  would  not. 

A  Mississippi  case'  takes  the  other  view.  There  the 
defendant  ran  a  steamer  for  the  carriage  of  the  mails 
and  passenj^ers  between  New  Orleans  and  ilohilc, 
landing  at  intermediate  points  on  the  coast  for  passen- 
gers whenever  he  advertised  to  do  so,  and  he  adv<M'tised 
at  Pascagoula  that  he  would  land  at  that  place  for 
passengers.  Acting  upon  this  notice,  the  plaint ItT's 
wife  and  himself  went  during  the  night  to  the  wharf 
to  take  passage  on  defendant's  vessel,  an<l  remainiMl 
there  in  waiting  for  it  during  the  balance  of  the  niglil, 
but  the  boat  di<l  not  land,  in  consecpience  of  which  thev 
were  not  only  greatly  disajjpointed,  but,  owing  to  tln' 
inclemency  of  the  weather  and  the  exi)osure,  the 
plaintiff's  wife  was  made  sick.  The  excuse  offen'd  by 
the  defendant  for  not  making  the  landing  acionling 
to  his  published  notice,  was,  that  owing  to  the  low 
tide  and  st<u'my  weat'  er,  the  vessel  could  not  iiave 
been  landed  without  danger,  and  withont  causing  a 
delay  in  the  <lelivery  of  the  nuiil  at  Mobile.  It  was 
held,  however,  that  while  thes(>  circumstances  give  rise 
to  no  si)ecial  contract  between  the  plaintiff  and  <le- 
fendant,  they  did  imi)ose  an  (tbligatiou  ujton  the  latter, 
the  disreg'iird  of  which  was  a  breach  of  dnty,  for  whicii 
he  could  l)e  sned  in  an  action  in  tort;  and  that  there 
being  evidence  of  a  willful  and  capri<ious  failure  t<» 
comply  with  the  notice,  from  which  the  plaintiff  and 
his  wife  were  sufferers,  ami  as  no  evitleuce  whatsoever 
was  given  of  any  effort  by  the  d 'fendant  to  land  his 
boat  as  he  had  advertised,  the  <ase  was  properly  sub- 
mitted to  the  jury,  whose  province  it  was  to  determine 


I  nerin  v.  McCanghan,  32  Miss.  17 
Am.  Dec.  S88. 

334 


r,r, 


en.  XVI.] 


THE  CONTRACT  OF  CARKIAGE. 


§  238 


wln'tlior  (lioro  had  beon  .such  willful  noj^lcrt  of  duty 
as  1<>  warraut  <»x(Muplary  danuif^os. 

The  tascs  ju.st  citod,  arc  the  only  ones  whero  the 
(|U<'.st;  I!  is  j)n's(Mit«Ml  in  the  form  of  an  offer  and  an 
inipli  1  .n'ccptanco  by  tho  inlcndinjj;  passon^or  presenl- 
inir  liinisclf  at  llio  place  appointed  in  the  offer.  The 
cases,  however,  where  the  contract  has  been  made  by 
the  purchase  of  the  ticket,  and  the  carrier  fails  to  per- 
form the  conditions  in  the  time-table  or  advertisement 
show  the  true  doctrine. 

^  '2',iS.  OH'er  turned  into  Contract  by  Furcliase 
of  Ticket.  —  In  (limloii  v.  Monclicslrr  Ixoilroad  Coin- 
pnitji,^  the  piaintilT  had  i>urcha.sed  a  ticket  to  be  car- 
ried (a<-cordln}:;  to  the  timetables),  from  a  way  station 
to  the  terminus  of  the  road,  but  the  train  did  not  stop 
for  liiiii,  for  the  reason  that  it  was  uiiexepectetlly  over- 
crowded, and  upon  an  up  grade,  which  in  its  loaded 
condition  would  have  made  It  very  diHicult  to  start 
ajijain  if  it  had  stopped  at  the  station,  lie  brou;j;ht  an 
a«ti(m  auainsl  the  comjumy,  but  it  was  hehl  that  th<* 
])nl>lished  time-tables  of  the  company  im])os(>d  upon  it 
no  further  oblij^alion  than  to  use  due  care  and  dili- 
j;ence,  to  be  punctual  in  its  departnics  and  arrivals, 
ami  in  the  <ai'rvin,  >f  its  passenjiers  accordin<;  to  such 
tables,  and  that  the  failure  in  this  instance  to  «'arrv 
(he  plaintiJT  as  he  had  Ix'en  led  by  them  to  expect,  not 
beiiij:;  attributable  to  the  neglij^ence  of  (he  company, 
he  could  not  i-ecover.  The  court  very  properly  rea- 
soned that  if  a  railroa<l  was  an  insurer  of  punctuality 
it  would  be  under  a  higher  obligation  to  run  punc- 
ttialiv  than  to  lun  safely;  and  that  as  to  safety,  carriers 
of  passenp'rs  are  boun«l  only  to  use  care  and  skill,  it 


I  52  N.  H.  «<«.  18  Am.  Hep.  IC.  am!  »ce 
Keea  t'.  It.  Co.,  (>9  N.  W.  Ii«p.  144  (Mlcti.). 


385 


iii 


"PT 


§  238 


THE  CONTRACT  OF  CARRIAGE.  [PART  III. 


-»•     Tit 
-»'  •-  *  1 


:;':t 

■•»■■■■ 


would  be  absurd  and  against  public  policy  to  make 
them  guarantors  against  loss  of  time  at  the  expense 
of  safety  of  life  and  limb.* 

In  incurs  V.  Euxtvrn  Railroad  Company,"^  a  railroad 
company  delayed  the  departure  of  its  train  for  about 
two  hours  after  its  advertised  time,  for  the  accommoda- 
tion of  a  number  of  its  patrons  who  wished  to  attend  a 
performance  at  the  theatre,  and  to  be  carried  home 
after  it  was  over,  and  a  ticket  holder  v'ho  went  to  its 
depot  to  be  carried  at  the  advertised  time,  was  allowed 
to  recover  from  the  company  his  expenses  in  boiug 
carried  to  his  destination  in  a  hired  conveyance.  This 
case  must  be  regarded  as  determining  the  true  .s7(////.s' 
of  tickets  and  time-tables.  The  ticket,  the  court  held, 
was  a  contract,  the  terms  of  which  were  to  be  found 
not  only  in  its  printed  terms,  but  in  the  public  adver- 
tisement of  the  times  when  the  trains  would  run,  which 
entertnl  into  and  became  a  part  of  the  contract.  Rut 
the  promise  as  to  the  running  of  trains  was  not  irre- 
vocable. Kailroads  find  it  necessary  to  vary  the  terms 
of  running  their  trains,  and  they  have  a  right  to  make 
these  variations  even  as  against  those  who  have  pur- 
chased tickets.  Th^  contract  eiitere<l  into  belwet^n  car- 
rier and  customer  by  the  publication  of  time-tables  and 
the  purduise  of  a  ticket,  is  subject  to  an  implied  condi- 
tion that  the  carrier  may,  after  reasonable  notice, 
change  its  promise  in  this  respect,  but  the  notice  of 
the  change  to  be  sufficient,  must  be  either  actually 


•  Another  reason  given  by  the  court 
waa  scarcely  as  aound.  "In  this  coun- 
try," it  was  said,  "uuiirly  all  railroads 
publish  time  tables,  and  delays  not  at- 
tributable to  negligence  are  not  uncom- 
mon; yet  suits  to  recover  damages  for 
detention  in  such  cases  are  almost,  if 
not  quite,  unknown.  That  such  actions 
are  almost  unprccedeiiteil,  shows  very 
strongly  what  has  been  nndemtood  to 

336 


be  the  law  upon  the  subject."  It  is 
submitted  that  it  shows  nothing  of  the 
kind;  it  shows  that  people  prefer  to 
waive  their  legal  rights  rather  than 
elect  to  enforce  them  with  all  the 
trouble  and  expense  of  a  lawsuitagainst 
powerful  corporations. 

^4  Allen,  433;  and  see  Savaunah  etc. 
K.  Co..  V.  Itouaud,  M  Ua.  180. 


CII.  XVI.]  THE  CONTRACT  OF  CARRIAGE. 


§   239 


brought  to  the  passenger  himself,  or  it  must  be  pub- 
lished as  extensively  as  the  original  advertisement  was. 
And  as  it  appeared  that  the  plaintiff  had  read  the 
time-table  in  the  city  newspapers,  and  no  notice  of  the 
change  had  been  published  there,  the  fact  that  such 
notice  had  been  posted  up  in  the  station  and  in  the 
cars,  did  not  affect  him,  it  not  being  shown  that  he  had 
actual  notice  of  the  change.  "If  they  had  published 
a  notice  of  the  change  in  the  newspaper  we  think  he 
would  have  been  bound  by  it.  For  as  they  have  a 
right  to  make  changes,  he  would  be  bound  to  take 
reasonable  pains  to  inform  himself  whether  or  not  a 
change  was  made." 

The  court  in  the  Sears  Case  said  that  "if  in  their  ad- 
vertisement they  had  reserved  the  right  to  make  oc- 
casional changes  in  the  time  of  running  a  i)articular 
train,  he  (the  passenger)  would  have  been  bound  by 
the  reservation.  It  would  have  bound  all  ])ass('ngers 
who  obtained  their  knowledge  of  the  time-tables  from 
this  source."  So,  in  Ifidst  v.  (innt  West.  I'.  To.,'  the 
time-table  which  the  plaintiff  relied  on  contained  a 
clause  that  the  scompany  did  not  warrant  that  the 
trains  would  arrive  punctually,  and  the  court  said:  "If 
there  was  any  contract  here,  it  would  appear  from  the 
time  bills  published  by  the  company;  and  if  the  plaint- 
iff (whose  duty  it  was  to  do  so)  had  put  in  the  time  bill 
we  would  have  seen  what  the  real  contract  was,  viz.: 
that  the  comi)an3'  do  not  warrant  that  tlieir  trains 
shall  arrive  with  punctuality  at  the  time  indicated  at 
the  different  stations."'- 

§  239.     Liability  for  not  Runninpr  Accordiiipf  to 

Time  Table.— From  the  foregoing  authorities,  the  law 
of  America,  on  this  subject,  may  be  thus  stated: 


>  19C.  n.  (N.  S.)310. 

23 


a  And  sec  Hawcrott  r.  IJ.  Co.,  supra. 


240 


THE  CONTRACT  OF  CARRIAGE.  [PART  III. 


c 

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1.  That  the  publication  of  the  times  and  places  at 
which  trains  leave  and  arrive  are  offers  which  become 
contracts  upon  their  acceptance  by  any  person  present- 
inj?  himself  as  an  intending  passenger  relying  on  such 
published  proposal. 

2.  That  such  offer  is  not  unconditional,  out  is  sub- 
ject to  the  implied  conditions  (a)  that  \i  performance 
shall  become  impossible  without  the  carrier's  fault,  he 
shall  be  excused,  and  (h)  that  he  shall  have  the  right 
to  change  its  terms  upon  giving  reasonable  notice  of 
such  change. 

3.  That  such  notice  of  change,  if  given  in  the  same 
manner  as  the  original  offer  was  nuide,  need  not  be 
brought  home  to  the  i)asseuger,  but  if  given  in  a  dif- 
ferent mauner  it  must  be. 

4.  That  the  contract  entered  Into  by  the  purchase  of 
a  ticket  is  subject  both  to  the  statements  made  in  the 
published  time-tables  and  to  the  implied  conditions, 
2  (a)  and  (h). 

5.  That  the  carrier  may  qualify  his  liability  by  giv- 
ing notice  in  his  time-tables  that  he  does  not  warrant 
that  his  trains  sliall  arrive  and  depart  at  the  precise 
times  indicated,  though  such  a  limitation  would  not 
be  construed  to  cover  a  breach  which  resulted  from  his 
gross  negligence. 

§  240.  Tickets  as  Contracts. — A  ticket,  whether 
issued  b}'  a  railroad,  a  ship  or  any  other  kind  of  car- 
rier, and  which  entitles  the  one  to  whom  it  is  sold,  or 
the  holder,  to  be  carried  a  certain  distance*,  has  not 
the  contract  effect  of  the  bill  of  lading  of  goods.  The 
reason  is  that  it  is  but  a  voucher  whose  office  is  to 
enable  the  servants  of  the  carrier  to  recognize  the 
holder  as  entitled  to  be  carried  ou  its  trains  or  ves- 
338 


CII.  XVI.] 


THE  CONTRACT  OF  CARRIAGE. 


§  240 


sels.'  "Where  a  person  purchases  a  ticket,  he  does 
not  expect  that  thereby  he  is  malviug  a  contract  limit- 
ing- the  liability  of  the  railroad,  but  simply  that  he 
is  receiving  a  check  showing  that  the  fare  has  been 
paid  over  the  line  to  the  place  of  destination,  wherever 
that  may  be."- 

Suppose  A  is  starting  on  a  journey  from  X  to  Y.  He 
goes  to  the  ticket  office  at  X,  and  says:  Give  me  a 
ticket  to  Y.  The  ticket  is  taken  from  the  pigeon  hole  by 
the  ticket  seller,  and  as  A  places  the  money  on  the 
counter  the  ticket  is  handed  to  him.  Or  before  asking 
for  a  ticket,  he  may  inquire  the  rate  of  fare  to  Y,  after 
learning  which  he  puts  before  the  ticket  agent  the 
money  and  his  ticket  is  handed  to  him  with  the  change, 
if  he  has  not  tendered  the  exact  amount.  This  is  the 
customary  mode  of  contracting  for  passage  by  train  or 
boat  in  all  parts  of  the  United  States.  Now,  it  is  ob- 
vious that  the  very  instant  the  ticket  agent  takes 
possession  of  the  money  tendered,  the  contract  to  carry 
A  from  X  to  Y  is  complete.  The  ticket  is  not  the 
contract  to  carry,  but  is  issued  for  the  purpose  of  satis- 
fying the  servants  of  the  carrier  in  charge  of  the  con- 
veyances that  A  has  a  right  to  be  carried  from  X  to 
Y,  and  it  is  for  the  carrier's  benefit,  who  would  other- 
wise have  to  notify  all  his  agents  and  servants  engaged 
in  the  transportation  that  he  had  contracted  to  carry  A 
from  X  to  Y.^     Suppose  A,  as  he  is  upon  his  journey, 


I  Nevins  t'.  Bay  State  Steamboat  Co., 
4  Uosw.  226;  Rawson  v.  U.  Co.,  4S  N.  V. 
212;  8  Am.  Uep.  54.3;  Itrown  v.  B.  Co.,  U 
Cush.  97;  Malonc  f.  U.  Co.,  12  Gray,  388; 
74  Am.  Dec.  598;  Qiiimby  i'.  Vanderbilt, 
17  N.  Y.  306:  72  Am.  iJec.  469;  Wilson  v. 
R.  Co.,  21  (iratt.  654;  ISurnham  r.  B.  Co., 
63  Mc.  298 ;  18  Am.  Rep.  220 ;  Kent  v.  R. 
Co.,  45  Ohio  St.  284;  4  Am.  St.  Rep.  539; 
12  N.  K.  Rep.  798;  Ken-  r.  Uverpool  etc. 
Mav.  (,'0.,  12  Week.  Dig.  164;  Logan  v.  R. 
Co.,  77  Mo.  666;   Ualt.   etc.   R.   Co.   v. 


Campbell,  36  Ohio  St.  647;  Frank  v.  In- 
galls,  41  Ohio  St.  .WO;  iMgan  v.  R.  Co., 
77  Mo.  666;  Verner  f.  Switzer,  32  Pa. 
St.  2US;  Mich.  Cent.  R.  Co.  v.  Harris, 
12  Wall.  68. 

2  Manritz  f.  R.  Co.,  23  Fed.  Rep.  765. 

>i  In  the  leading  English  case  of  Hen- 
derson, t'.  Stevenson,  L.  R.  2  Sch.  &  Div. 
470,  overrnling  Zunz  t'.  R.  Co.,  L.  R.  4  Q.  B. 
839(1869) ,  Lord  Chelmsford  said :  "Assent 
is  a  question  of  evidence,  and  the  as- 
sent must  be  given  before  the  complc- 

339 


§240 


tup:  CONTIIAOT  OF  CARRIAGE.  [PART  III. 


c  ■: 


•  <•« 

«:r. 

•  •• 

("■f 

1 

■J 

".  ■( 


:r.r 


finds  a  notice  on  his  ticket  limiting  the  liability  of  the 
carrier,  ov  requiring  the  passenger  to  perform  certain 
conditions,  is  he  bound  by  them?  Certainly  not,  for 
as  they  were  no  part  of  the  contract  he  made,  they 
are  of  no  binding  force,  and  he  may  simply  disregard 
them.* 


tion  of  the  contract.  The  company  un- 
dertake to  carry  passengers  in  their 
vessels  for  a  certain  anm.  The  moment 
the  money  for  the  passage  is  paid  and 
accepted,  their  obligation  to  carry  and 
convey  arises.  It  does  not  recjuire  the 
exchange  of  a  ticket  tor  the  passage 
money,  the  ticket  being  only  a  voucher 
that  the  money  has  been  paid.  Or  if  a 
ticket  is  necessary  to  bind  the  company, 
the  moment  it  is  delivered  the  contract 
is  comi)leted  before  the  passenger  has 
had  an  opportunity  of  reading  the 
ticket,  much  lens  the  indorsement." 
Lord  IlatluM'ly  concurred.  "I  agree," 
said  he,  "with  the  observation  that 
WHS  made  by  my  noble  anil  learned 
friend.  Lord  Chclni.sford,  that  the 
money  having  been  paid,  and  the  ticket 
having  been  taken  up,  a  contract  was 
completed  upon  the  ordinary  terms  of 
conveyance  for  him -elf  and  his  luggage, 
unless  it  can  be  made  out  that  he  had 
entered  into  any  special  contiact  to  the 
contrary.  A  ticket  is  in  reality  in  itself 
nothing  more  than  a  receipt  for  tlie 
money  which  has  been  jiaid." 

Ib  liurke  r.  M.  Co.,  L.  K.  5  C.  I'.  Div.  1 
a  ticket,  issued  by  a  railroad  company 
in  Kngland  for  a  Journey  from  London 
to  l'aris,was  in  the  form  of  a  small  book 
of  coupons,  enclosed  in  u  paper  cover, 
and  the  paper  cover  contained  printed 
matter.  The  (;ourt  held,  that  the  con- 
tract was  contained  in  the  whole  book, 
including  the  cover,  and  that  the  Kn- 
glish  company  were  protected  by  a  con- 
dition printed  on  the  inside  or  page  two 
of  the  cover,  and  exempting  them  from 
liability  for  damage  incurred  on  the 
French  railroad,  although  the  passen- 
ger had  not  read  or  noticed  the  condi- 
tion. The  case  was  distinguished  from 
Henderson  v.  Stevenson  on  tlie  ground 
that  the  form  of  the  ticket  showeil  the 
passenger  that  it  was  not  a  mere  voacher, 

840 


but  the  contract  which  the  company  of- 
fered to  make  with  him. 

A  distinction  is  taken  in  a  New  York 
case  between  ordinary  steamboiit  I  Icketa 
and  ocean  steamship  tickets,  for  the 
reason  that  an  engagement  for  a  voyage 
across  the  ocean  is  a  matter  of  more  de- 
liberation and  attention  than  buying  a 
railroad  ticket  or  taking  an  express 
company's  receipt  for  baggage  or  freight. 
Steers  r.  F.ivcrpool  etc.  Steam  Co.,.')!  N. 
Y.  I.  This  distinction  is,  liow<'vor,  re- 
jected in  a  case  in  the  Kedcral  court 
except  as  to  regulations  which  llie  car- 
rier has  a  right  to  make.  The  Majestic, 
eo  Ked.  Itep.  fi24. 

1  Molouc  f.  It.  Co.,  12  c;ray  3HS;  74  Am. 
Dec.  Sitv;  Ilrown  r.  It.  Co.,  11  Cusli.  IiT; 
Henderson  r.  ."^lovenson,  L.  U.  'I  He.  A 
Div.  ('as.  470;  criticising  Zunz  r.  I{.  Co., 
L.  K.  4  Q.  11.  544;  Itallimore  etc.  U.  Co. 
r.  Campbell,  .W  Ohio  St.  fi47 .  .fs  Am. 
Ucp.  017;  Kent  v.  li.  Co.,  4."i  cluo  St. 
2H4;  4  Am.  St.  Hep.  .W.l;  12  N.  K.  Kep. 
7118;  Kansas  etc.  1{.  Co.  r.  Uodenhaiigli, 
:«  Kas.  4.");  r,  Am.  St.  Iti-p.  71.');  15 
I'ac.  IJep.  8'.t!t;  Mauritz  v.  U.  Co.  211  Ked. 
Uep.  7t„5.  "It  would  be  unreasonable  to 
presume  thata  passeuKcr,  when  he  liuvs 
a  railroad  ticket  at  a  ticket  otiicc,  stops 
to  read  the  language  printed  on  it,  and 
it  would  bo  equally  unreasonable  to 
hold  that  a  passenger  must  take  notice 
that  the  language  upon  his  ticket  cnn 
tains  any  contract  or  in  any  way  limits 
the  carrier's  common  law  liability.  •  • 
The  contract  between  these  parties  was 
made  when  the  plaintiff  bought  her 
ticket  and  the  rights  and  duties  of  the 
parties  were  then  determined.  Hence, 
even  if  the  plaintllF  had  read  what  ap- 
pears upon  her  ticket  after  she  had  en- 
tered upon  her  Journey,  it  would  have 
made  no  difference  with  her  rights.  She 
was  not  then  obliged  to  submit  to  a  con 
tract  which  she  never  made  or  leave  the 
train  and  demand  her  baggage."  Kaw- 
sonr.  U.  Co.,  48  N.  Y.  212. 


CH.  XVI.]  THE  CONTRACT  OF  CARRIAGE. 


§240 


If  the  passenger  is  notified  at  the  time  of  the  pur- 
chase of  the  ticket  that  he  must  sign  it,  this  is  notice 
to  him  that  it  is  a  contract,  and  not  a  mere  voucher, 
so  that  if  he  docs  sign  it,  he  will  be  bound  by  all  its 
legal  condition.s,  even  though  he  does  not  read  them.*' 
And  if  the  ticket  is  a  "free  pass,"  or  one  issued  with- 
out consideration,  its  acceptance  by  the  passenger  con- 
stitutes a  contract  between  him  and  the  carrier  with  all 
the  legal  conditions  it  may  contain.  The  reason  is 
that  one  may  well  presume  that  a  gratuity  is  not  likely 
to  be  conferred  except  with  some  limitations,  which  it 
is  the  duty  of  the  recipient  to  acquaint  himself  with.- 
So,  in  the  case  of  an  absolutely  free  pass — a  gratuity — 
the  passenger  would  be  bound  by  the  condition  on  the 
principle  that  he  who  accepts  a  gift  must  ac"  ept  also 
the  conditions  on  which  it  is  given.'' 

And  there  are  certain  regulations  of  the  carrier 
which  the  latter  has  a  rigiit  to  make  for  the  protection 
of  the  i)ublic  as  well  as  his  own,  which  are  binding 
on  all  persons  as  soon  as  they  are  pubilshe<l,  and 
whether  they  are  known  to  the  passenger  or  not.  As 
well  sahl  in  a  Missouri  case:  "A  railroad  operated  at 
random,  without  fixetl  rules  and  n-gulations  to  be  ob- 
served in  its  management,  would  be  a  nuisance  and 


I  Hethen  v.  R.  Co.,  2r,  S.  C.  ni ;  i  s.  K. 
Kep.  372. 

•-•  Wells  V.  n.  Co.,  24  N.  V.  IHl ;  2r.  IJarl). 
641:  Smith  f.  U.  Co.,  24  N.  V.  22>;  IVr- 
kiiiH  r.  K.  Co.,  24  N.  V.  I'.H'.;  (Jnlf  <,'lc.  K. 
Co.  f.  Mr.(;owan,r„')Tex.  OK);  Uull  f.  R. 
Co.,  I,.  K.  log.  II.  43". 

'  Qiiiiiiby  r.  R.  Co.,  28  N.  E.  Rep.  205 
(Mii'S.).  On  Ihis  iirincipio  of  tlic  ac- 
ceptance of  a  Kift  nnil  not  the  iiiiikinKof 
n  cositruct  the  condition  was  held  to 
be  bindinK  on  an  infant  in  (IriHWold  r. 
R.  Co.,  5.1  Conn.  H71 ;  65  .\m.  Kcp.  ll.l. 
In  Rogers  r.  Kennebec  .Steamboat  Co., 
2y  .\tl.  Uep.  lOfi'J  (Me.)  the  plaintiff  was 
riding  on  a  tree  pass  with  a  trienU  wlio 


had  obtaincil  it  for  licrself  "and  two 
ladie.s."  The  plaintilF  at  the  time  of  the 
injury  had  not  seen  the  pasH,  but  knew 
of  it  and  was  availinf;  liursvit  of  it.  She 
wtiH  held  bound  by  its  coiiilitions,  the 
court  saying:  ".She  knew  that  it  was  a 
mere  gratuity  and  Hhe  had  au  opportu- 
nity to  ascertain  if  any  conditions  were 
attached  to  the  gift.  Ilor  omiij.sion  to 
inform  herself  of  its  terms  could  give 
her  no  additional  rightH.  The  accept- 
ance of  a  conditional  gift  necessarily 
involves  ft  compliance  with  the  condi- 
tions."   Miildoou  V.  U.  Co.  88  I'ac.  Uep. 

yys  (Wash.). 

841 


wr 


§241 


THE  CONTHACT  OF  CAKRIAQE.  [PAHT  III. 


•^r 

r^. 

c 

:> 

••'  < 

::; 

•  ^ 

..#"* 

** 

m»* 

•  •# 

c 

-^ 

•■•• 

T* 

>i 

•  >• 

*   M 

<!' 

t 

f-r 

y 

■...» 

;i 

C' 

•» 

p  ... 

•*!:. .... 


terror  to  tlio  country  throiij?h  which  it  inip;ht  pass. 
The  probability  that  innumerable  accidents  and  in- 
juries  would  result  from  such  a  reckless  mode  of  iiu)v- 
iuj;  trains,  recjuires  the  adoption  and  strict  enforce- 
ment of  reasonable  refjulations  for  their  operation  and 
mana«i;ement."' 

§  241.  Ticket  Good  for  Coiitiiiiioiis  Trip.— The 
contract  of  carriage  from  one  jdace  to  another  is  an 
entire  contract,  and  the  passenp»r  has  no  ri<;ht  to  de- 
mand that  the  carrier  shall  allow  him  to  };o  a  jKU'tion 
of  the  journey  at  one  time,  and  another  portion  at 
another.  The  ticket,  for  example,  is  for  a  trij)  from 
A  to  C.  The  passenger  cannot  claim  to  be  carried  to 
II,  an  intermediate  station,  and  afterwards  from  1*. 
to  C'.^  Though  the  holder  of  a  coupon  ticket  over  con- 
necting lines  is  not  bound  to  make  a  continuous 
journey  from  his  starting  point  to  his  <lestination,  he 
is  obliged  to  make  a  continuous  journey  betw(H»n  each 
of  two  ])oints  named  on  a  coupon.'' 

But  where  a  passenger  on  a  train  which  does  not 


1  Logan  t'.  R.  (;o.,  77  Mo.  fi63.  As  to 
regulations  of  this  kind  8cc  poti. 

«  stone  r.  U.  I'o.,  47  Iowa,  Hi;  S9  Am. 
Rep.  458;  Hamilton  r.  R.  ('o.,61N.V. 
101);  Ohaner  f.  R.  Co.,  11  Met.  121 ;  4.">  .\m. 
Dec.  190;  (;ievolnn(l  etc.  R.  Co.  v.  IJart- 
ram,  11  Ohio  St.  4S7;  State  v.  Overton, 24 
N.  J.  43S;  til  Am.  IH'C.  RTl ;  Jolinuon  i\ 
R.  Co.,  46  N.  n.  213:  W  Am.  Dec.  19!t; 
llcebe  r.  Ayres,  28  Harb.  27.'i;  Drew  v. 
R.  Co.,  51  Cal.  42.");  Ilriggs  v.  R.  Co., 
241,'.  C.  Q.  n.  510;  Craig  f.  R.  Co.,  24  C. 
C.  Q.  H.  604;  Itnrkcr  r.  Collin,  31  Rnrb. 
656;  Hrecn  f.  B.  Co., 50 Tex.  4.5;  (iale  v. 
R.  Co.,  7  Hun.  670;  oil  Creek  etc.  R  Co. 
r.  Clark,  72  I'a.  St.  231 ;  Terry  f.  R.  Co., 
13  Ilnn.  359;  Dnnphy  f.  R.  Co.,  10  .Jones 
AS.  128;  Uletricb  t-.  R.  Co.,  71  I'a.  St. 
4.12;  10  Am.  Rep.  7M  ;  Vanklrk  v.  R.  Co., 
76  I'a.  St.  66;  18  An.  Rep.  404;  Ilatton  f. 
R.  Co.,  39  Ohio  St.  375;  .Johnson  r.  R. 
Co.,63Md.  106;  Roberta  v.  Koeblcr,  30 

342 


Fed  Rep.  04;  Wyman  v.  H.  Co.,  M  Minn. 
21U;  Wnlk.T  r.  U.  (;o.,  1.%  M...  r.Vpp.)  .«:!; 
alitor  by  statute  in  Maine.  Carpenter  c. 
R.  Co.,  72  Me.  388.  A  comlnctor's  clieck 
is  evidence  only  that  fare  has  been  paid 
for  a  continuous  jniimcy.  State  r.  over- 
ton,  24  N.  .1.  L.  4.15;  61  Am.  Dec.  671, 
Cheney  r.  R.  Co.,  11  Met.  121;  45  Am. 
Dec.  190;  McClure  r.  R.  Co., .34  Md.  Mi; 
6  Am.  Rep.  345;  Walker  v.  R.  Co.,  15  Mo. 
App.  ,333.  Ily  statute  in  Oaliforniu  this 
is  allon-ed  to  piiHsrngcrs  and  where  » 
railroad  ninintiiins  several  dcpotM 
in  a  city,  each  depot  is  an  "inter- 
medi.ite  station,"  within  the  meaning  of 
the  statute.  Robinson  r.  R.  Co.,  38  I'ac. 
Rep.  '.t4,  722. 

3  Little  Rock  etc.  R.  Co.  i-.  Dean,  43 
Ark.  529;  51  Am.  Rep.  584;  Brooke  r.  R. 
Co..  15  Mich.  332;  Calmer  i:  R.  Co.,  3  8. 
C.  5«0. 


Cir.  XVI.]  TRK  OONTIIACT  OF  CARRIAGE. 


§241 


stop  at  C  is  allowed  to  ride  to  B,  he  is  entitled  to  travel 
on  a  proper  train  from  H  to  0  on  the  same  ticket.*  And 
Ihe  passenger  may  alight  at  places  where  the  vehicle 
stoi)s,  and  resume  his  journe}'  on  the  same.-  And  he 
has  a  right  to  ride  to  a  station  if  the  train  stops  there, 
short  of  his  destination   by  the  terms  of  the  ticket.'' 

The  sale  of  a  ticket  before  the  departure  of  a  train, 
or  before  the  passengers  are  permitted  to  enter  it,  is 
not  a  representation  that  the  train  will  stop  at  the 
place  to  which  the  ticket  is  sold,*  or  that  it  will  wait 
until  the  passenger  can  board  it,  beyond  its  schedule 
time  for  leaving."     A  ticket  nuirked  "good  on  passen- 
ger trains  only,"  does  not  imply  that  all  the  passenger 
trains  of  the  railroad  company  issuing  it  will  stop  at 
the  station  designated  on  it."     Nor  is  the  punching  or 
taking  up  of  a  ticket  by  a  conductor,  after  he  has  in- 
formed a  passenger  that  the  train  will  not  stop  at  a 
station,  an  agreement  that  it  will." 

Nor  does  a  ticket  from  A  to  ( •  give  any  right  to  be 
carried  from  C  to  A.**  Nor  does  a  ticket  from  A  to  C 
give  a  right  to  travel  in  a  roundabout  way,  but  only 
in  the  usual  and  most  direct  route  from  A  to  C." 


m 


1  Kellctt  v.  R.  Co.,  •>2  Mo.  (.Vpp.)  35fi. 

-  nice  r.  Willamette  Trana.  Vo.,  8 
Orcg.  CO; 

•1  Wheel.  Carr.  148  criticising  .lohnson 
f.  1!.  Co.,<i.S  Mii.  lOfi;  see  Kio.limond  etc. 
U.  Co.  f.  Ashley,  79  Va.  130;  62  Am.  Hep. 
620. 

*  Doling  r.  U.  Co.,  06  Md.  120;  Pitts.ctc. 
n.Co.  f.  Nuzuni,  50  Ind.  141;  I'J  Am.  Hep. 
"o.t;  Ohio  etc.  Il.Co.  r.  Swarthont,  fi7  Ind. 
5r,:;Int.  elc.  K.  Co.  r.  nassell,  G2  Tex. 
ZU;  5U  Am.  Itep.  525.  See  Mobile  etc.  K. 
Co.  r.  McArthnr,  43  Miss.  180. 

» I'aulitsch  t».  U.  Co.,  102  N.  V.  280;  6  N. 
E.  Kep.  677. 

n  Ohio  etc.  R.  Co.  v.  Swarthont,  67  Ind. 
667 ;  33  Am.  Rep.  104. 

7  Trotlingcr  v.  R.  Co.,  11  Lea.  a53. 

»Kceleyv.  R.  Co.,  67  Me.  163;  24  Am. 


Rep.  19;  Coleman  v.  R.  Co.,  106  Mass.  160. 
«  Itennctt  i'.  R.  Co.,  69  N.  Y.  607 ;  25  Am. 
Rep.  260;  Church  r.  U.  Co.,  60  N.  W. 
Rep.  854  (S.  D).  Under  the  code  of  Cali- 
fornia, which  empowers  the  purchaser 
of  a  railroad  ticket  to  ride  from  the  sta- 
tion at  which  the  ticket  was  bongbt  to 
the  station  of  destination,  "and  from 
any  intermediate  station  to  the  station 
of  dcatioation,"  at  any  time  within  six 
months  after  the  pnrchase  of  the  ticket, 
the  right  of  a  passenger  to  stop  at  an  in- 
termediate station,  and  resume  his 
Journey,  is  not  atfected  by  the  fact  that 
the  ticket  bonght  by  him  gave  him  the 
choice  of  two  different  routes,  and  he 
selected  the  longer  route.  Robinson  t>. 
R.  Co.,  38  Pac.  Rep.  722, 94. 

343 


:  i 


^: 


§242 


THE  CONTRACT  OF  CARRIAGE.  [PART  III. 


:1 


Vrta*  •  t 

:;".f 


§  242.  Limitations  as  to  Time. — As  a  general 
rule,  a  ticket  is  good  until  used.'  The  contract  of  car- 
riage may,  however,  be  limited  as  to  time,  as  is  fre- 
quently done  by  placing  in  the  ticket  a  condition  that 
it  shall  not  be  good  for  passage  after  the  expiration  of 
a  prescribed  time.  Such  conditions,  if  brought  home  <o 
the  passenger  so  as  to  be  a  part  of  his  contract  with 
the  carrier,  are  valid,-  and  they  are  reasonable  because 
in  no  other  way  can  the  carrier  protect  himself  from 
overcrowding,  or  be  able  to  anticipate  the  numbei' 
of  passengers  he  will  be  required  to  provide  for  at 
a  given  time.''  A  commuUition-ticket,  good  for  a  cer- 
tain number  of  miles,  but  limited  to  a  certain  time,  is 
worthless  after  that  time,  although  the  number  of 
miles  have  not  been  traveled.^  A  ticket  worthless  for 
this  reason  is  not  valitlated  because  other  persons  with 
similar  tickets  have  been  allowed  to  travel  without 
objection,'"'  or  because  it  has  been  i)unched  by  a  bag- 
gage-man," or  recognized  by  one  of  several  conductors.' 
Where  a  ticket  is  required  to  be  "used"  by  a  certain 
day,  the  passenger  need  not  have  completed  his  journey 
by  that  date,  it  Is  sufticient  that  he  has  commenced  it.** 
A  ticket  **goo(l  this  trip  only,"  entitles  the  passenger  to 


1  Penn.  R.  Co.  v.  Spicker,  105  Pa.  .St. 
142. 

2  Hill  f.  R.  Co.,  63  N.  Y.  101 ;  Farewell 
r.  R.  Co.,  15  U.  C.  0.  V.  427;  Klinore  v. 
SanUs,  64  N.  Y.  512;  1.S  Am.  Rep.  617; 
llaikcrr.  Coflin,  31  Hurb.  65G;  Moice  t'. 
R.  Co.,  61  IJarb.  611;lloston  etc.  R.  Co.  v. 
Proctor,  1  Allen  267;  79  Am.  Dec.  729; 
.Shedd  V.  R.  Co.,  40  Vt.  88 ;  State  r.  Camp- 
bell, .S2  N.  J.  L.  309;  Wentz  r.  R.  Co.,  5 
Thomp.  &C.55e;  3  Hon.  241;  Nelson  r. 
R.  Co.,7  Hun.  140;  Briggs  r.  R.  Co.,24U. 
C.  Q.  B.  510;  Pennington  v.  R.  Co.,  6t 
M(l.  !«;  Johnson  v.  R.  Co.,  46  N.  H.  213; 
88  Am.  l>eo.  199;  Ramtzy  r.  R.  Co.,  40  La. 
Ann.  47.  Aliter  by  statute  in  Maine, 
Drydcn  v.  R.  Co.,  60  Me.  512. 

3  Barken'.  Coflin,  31  Biirb.  65G. 

4  Powell  f.  H.  Co.,  26  Ohio  St.  70;  Sher- 

344 


man  f.  K.  Co.,  40  Iowa  45;  LilliM  r.  If. 
Co.,  64  Mo.  462  ;  27  Am.  R«p.  2!>5 ;  Hall  v. 
R.  Co.,  9  Fed.  Rep.  585. 

»  Oppcnheimerr.  R.  Co.,  9  Colo.  320;  12 
Pac.  Rep.  217. 

B  Wentz  V.  R.  Co., 3  Hun.  241; 5  Thomp. 
&  C.  5SC. 

7  Dietrich  v.  R.  Co.,  71  Pa.  .St.  4,S2;  10 
Am.  Rep.  711 ;  Sherman  v.  R.  Co.,  40  Iowa 
45;  WakeUeld  r.  R.  Co.,  117  Mass.  544; 
.Johnson  f.  R.  Co.,  4G  N.  H. '>13;88Am. 
Dec.  199;  Hill  v.  R.  Co.,  63  N.  Y.  101 ;  No- 
lan c.  R.  Co.,  9  Jones  &  S.  841;Stoncr. 
R.  Co.,  47  Iowa  82 ;  29  Am.  Rep.  468;  Kee- 
leyr.  R.  Co.,  67  Me.  163. 

8  Lundy  v.  R.  Co.,  68  Cal.  191;  66  Am. 
Rep.  100;  Anerbach  v.  R.  Co., 89  N.  V. 
281 ;  42  Am.  Rep.  390;  Evans  v,  R.  Co.,  11 
Mo.  App.  463. 


on.  XVI.]  THE  OONTKACT  OF  CARI{IA(iK 


§244 


use  it  oiH'f  on  any  day,  the  woi'tlw  relatinj;  not  to  tiiuc, 
but  to  u  journey.' 

§  243.  Assij^iiability  of  Ticket. — A  ticket  i.s  ordi- 
narily transferable,-  but  a  condition  in  a  ticket  tiiat  it 
shall  not  be  transferred,  is  good."'  One  who  rides  on 
such  a  ticket  with  the  knowledj^e  of  the  carrier,  is, 
nevertheless,  a  jjassenjjjer.'' 

§  244.     Ticket  Conclusive  of  Passenger's  Ri{?htH. 

— The  ticket,  as  between  conductor  and  i)assen{.5er,  is 
conclusive  <'vidence  of  the  ri'.'ht  of  the  passenger  to 
travel,  and  the  former  is  not  oblij^cd  to  take  the  pas- 
senp'r's  word,  or  acce])t  his  statements  that  he  has 
]>aid  the  projK'r  fare  to  the  pi'o]H'r  oHicer/'  where  tin? 
passenger  has  lost  or  forgotten  his  ticket;"  or  lias  been 
given  the  wrong  ticket  by  the  ticket  ag<*nt,  or  a  ticket 
which  does  not  entitle  him  to  the  passage  claimed  by 
him;"  or  where  a  former  conductor  has  taken  up  his 
ticket  and   given  him   no  vouchei'  to  present  to  the 
second    couductor;"*     or    a    wrong    voucher;''     or    has 
punched  it  as  us(»d  over  the  whole  line;'"  oi'  the  ticket 
luis  on  its  face  ex])ire<l,  but  the  passeng<'r  claims  it 
was  owing  to  the  fault  of  the  carrier;"  or  the  conditions 


1  Pior  f.  Finch,  24  Barb.  514. 

8  Hndson  r.  U.  Co.,  3  McCrary,  249. 

3  I'OHt  r.  n.  Co.,  14  Neb.,  110;  45  Am. 
Hep.  100;  \r,  N.  W.  lU'p.  225;  Cody  c.  It. 
Co.,  4  Sawy.  114;  Kreidcnrich  v.  I{.  Co., 
6AMi\.  201. 

4  ItiMjostelli  r.  K.  Co.  33  Fed.  Rep.  796. 
«  IVtrio  V.   K.   Co.,  42  N.   .J.    (L.)449; 

Mosbeir.  U.  ('o.,2;i  Fed.  Uep.  320;  Hnll 
r.  It.  (;o.,  15  Fed.  Rep.  S7;  Atchison  etc. 
H.  Co.  r.  (iiintB,  38  K.1S.  filS;  17  Pac.  Rep. 
84;  Wciivcr  f.:it.  Co.,  3  Th.  &  C.  270;  Me- 
kay  r.  R.  Co.,  34  \V.  Va.  65;  11  8.  K.  Rep. 
737;  Rose  r.  It.  Co.,  inij  X.  ('.  it;8;  11  ,S.  E- 
Rep.  62();  Louisville  etc.  R.  Co.  v.  Flem- 
inK,  14  Lea  128. 

8  Thoinp.  Carr.,  I'ais.  .S39;  Powns  f.  R. 
Co.,  .SG  Conn.  287;  4  Am.  Rep.  77;  Jerome 
V.  Smith,  48  Vt.  2.S0. 


7  Peabody  r.  H.  Co.,  20  Atl.  Rep.  1  53 
(Dr.);  Frederick  r.  H.  Co  ,  ;17  Mirh.  .142; 
ChlcaKo  etc.  R.  Co.  v.  <irilliii,  OH  111.  4St(); 
Penn.  R.  Co.  r.  Connell,  112  Pa.  .St.  205; 
Mckayr.  R.  Co.,3J  \V.  Va.  (m;  11  S.  IC. 
Rep.  737. 

K  Townsend  c.  It.  Co.,  .50  N.  Y.  295;  15 
Am.  Rep.  419;  Slicllon  c.  R.  Co.,  29  Ohio 
.St.  214. 

»  Ilradshaw  v.  R.  Co.,  135  Mass.  407; 
40  Am.  Rep.,  481;  McClnrer.  R  Co.,  34 
Mil.  ,5,32;  0  Am.  Rep.  .345;  Yorton  v.  R.Co. 
64  Wis.  234;  41  Am.  Rep.  23;  11  N.  W. 
Rep.  482. 

10  Phila.  etc.  R.  Co.  v.  Rice,  64  Md.  63. 

u  I'enn.  Co.  v.  Mine,  41  Ohio  .St.  276; 
contra.  Little  Rock  etc.  R.  Co.  v.  Dean, 
43  Ark.  529;  61  Am.  Rep.  5S4. 

345 


1 


§244 


IE  CONTRACT  oF  CARRIAGE.  [PAUT  III. 


•••  ♦       '■ 


.»■.       • 

■*"       't 

-  I       I 

'.'1 

) 


I 


*«    -   *    •« 


of  the  tickol  roquiro  that  tho  i)assougor  shall  be  identi- 
tied  by  a  certain  person  or  the  ticket  stamped  at  a  cer- 
tain station,  and  the  passen«j;er  exphilns  that  he  could 
lind  no  aj-^i'nt  there.' 

lie  nnist  \ni\  his  fare,  or  he  will  l>«'  rij^htly  ejected, 
and  the  carrier  cannot  be  made  liable  for  the  ad  of 
the  conductor  in  so  ejectinjjf  him,  but  the  remedy  of 
the  passen«j;i'r  is  on  i'lv  breach  of  the  contract  of  car- 
riage, or  upon  the  ne;i;lect  or  mistake  of  the  former 
servant.  The  conductor  of  a  train  or  car,  it  is  said, 
cannot  be  rccpilre^l  to  take  the  word  of  a  passen<:;er 
that  he  has  pr.id  his  fare  thou<;h  he  has  no  ticket,  lie 
should  not  be  called  upon  to  »lccide  the  correctness  of 
the  passen<;cr's  s(;)ry.  A  wrcnj;  decision  in  favctr  of 
the  passen^icr  wctuld  leave  the  carrier  without  remedy 
for  the  fare,  for  the  i»ass(  iij^cr  <lisa|>p«'ars  at  (lu*  end  (jf 
the  tri|),  and  even  if  he  docs  not,  the  carrier  would  lind 
it  inipos.siblc  to  prov<'  tiiat  a  pai'licula:  i)assen;iei  had 
not  purchased  a  ticket  at  one  of  his  r.umerous  slatioi;s. 
A  wrong  decision  .igaiust  the  j)assenger,  on  the  other 
hand,  w<iuld  subject  the  carrier  to  tlie  liability  of  a 
trespasser,  the  elTecl  of  which  would  be  tha*  the  car- 
I'ier  woul'l  be  obliged  <'ither  to  carry  every  person  wlnt 
claimed  to  have  obtained  a  right  tct  do  so,  and  thus 
submit  to  nuiiu'roun  frauds — every  lawh'ss  person  pos- 
sessing sullicient  recklessness  hiiving  him  at  a  disad- 
vantage— or  make  such  slring<'!it  rules  to  protect  him- 
self as  would  greatly  incommode  the  public. 

The  cases  where  the  passeng<'r  has  been  held  in  the 
wrong  in  ir:.ssting  on  riding  upon  a  ticket  which  does 
not  call  for  t!«e  transportation  he  claims,  are  where, 
though  a  contn  ct  has  been  made  for  a  parti<uiar  trip, 

1  Moshor  V.  H.  Co.,  17  Vcd.  Rep.  S80;  W  H.  O.  ill;  1  8.  K.  Ucp.  872;  Taylor  iv  K. 
23/(/..H2r.;  Ii7  i:.  rt.  ;ii>0;  (  loud  f.  U.  Co.,  eo.,!»9N.(!.  1B5.6  Am.  SJ  KoilSW;  6  S. 
U  Mo.  (App.)  IM;  nee  IteUiea  t'.  U.  Co.,       K.  Itsp.  750. 


en.  XVI.] 


THE  CONTUACT  OF  rAIlllIA(JK. 


§244 


the  passenger  lias  inadvertently  received,  througli  the 
error  of  tlie  carrier's  servant,  a  voncher  entitling  him 
to  something  else  or  to  nothing,  or  he  has  been  deprived 
of  his  voucher  by  the  mistake  of  some  servant  of  the 
carrier.  Therefore,  if  the  ticket  on  its  face  is  a  good 
one  for  the  passage  claimed,  the  conductor  cannot  law- 
fully refuse  it,  and  the  carrier  will  be  liable  for  the 
ejection  of  the  pasenger  who  refuses  to  pay  his  fare 
again,  though  the  <'onductor  act  according  to  the  car- 
rier's instructions  to  him.  This  is  only  efpiivalent  to 
saying  that  the  ticket  is  conclusive  evidence  of  the 
passenger's  right  to  travel  as  between  conductor  and 
l)assenger,'  In  a  Massachusetts  case,-  the  carrier's 
agent  sold  tlu'  plaintlfT  a  ticket  good  fi'om  A  to  B, 
and  the  passenger,  on  noticing  soiiie  holes  punched  in 
it,  in(pMred  of  him  what  they  meant,  and  the  a'jjent 
assured  the  [)assenger  that  they  made  no  difTerence,  but 
tjjat  the  ticket  was  all  right.  The  conductor,  acting 
under  his  (trders  a  to  tickets  so  punched,  refused  to 
i-eceive  it,  ami  ejected  the  jiassenger.  It  was  held  that 
the  railroad  was  lialde  for  the  ejection,''       U'here  a 


1  Unffonlr.  K.  Co.,  S3  Mich.  118;  tl4 
Mich.  ti;n;  I'hila.  etc.  U.  Co.  r.  Hicc,  04 
Mil.  0,1;  Toledo  etc.  U.  Co.  r.  McPoii 
oiik''.  5;I  1ml.  2WI;  Ijiko  Krie  etc.  U.  Co. 
f.  I'iX,  HH  liid.  ;W1;  45  Alll.  Uep.  404 
(wliLTP  IliM  iIiHtiiK'tiou  ill  rocoKtiizeil 
uml  followiMl)  ;  I'itls.  etc.  K.  Co.  f 
lIciitiiKli,  ;«•  Iiiil.  snii;  I'lilirer  i:  K. 
^;o.,3.'^.  (\r,SO;l(i  Am.  Uep.  750;  'tiirn- 
hlllllf.  U.Co.,  03  Me.  298;  IH  .\r.i.  Itcp. 
'z'!(i;  t  liicaKo  etc.  H.  Co.  r.  Itnuiierinaii, 
i:<  111.  (.\pp.)  KM);  .Johnison  I'.  U.Co.,  40 
Kctl.  Uep.  347;  McljimiL'ss  «■.  U.  Co..  '21 
.Mo.  (.\pp.)  .W7;  McMahoii  f.  li.  Co.,  47 
N.  Y.  (.S.  C.)  2H2;  Maroncy  r.  It.  Co.,  I(i8 
Mii'iti.  V,3;  SheetH  r.  R.  (;o.,20S.  K.  Uep. 
6f,0(\V.  Vil). 

«  .Murdoch  v.  U.  Co.,  137  .Muh8.  2113; 50 
Am.  Rep.  ,W7. 

s  "  If,"  Hajd  the  Court,  "when  the  con- 
ductor refii'ied  to  accept  the    imuched 


ticket,  ;<  "-.nd  appeared  on  an  inspection 
of  it  til 't  .l.erc  had  been  a  mi.stakc,  iiiid 
tim!  it  il  11  not  on  its  face  purport  to  be 
Koo<l  for  a  passage  over  that  part  of  the 
(U'fendant'ii  road,  and  that  the  ticket- 
Heller  had  dcUvereil  ti>  tlia  plaintiff  a 
good  ticket  upon  soineollif  r  lailroad,  or 
to  sonip  place  which  had  tilrcady  been 
passed,  when  tlic  iiiisiakr  was  dis- 
covered, aiKl  it  was  fmiiid  that  the 
nlaintiff  had  throir  ..  ii:advertence  ac- 
cepted a  ticket  .ihich  on  its  face  was 
plainly  insulUi'  ent,  then  this  case  would 
have  fallen  within  the  doctrine  of  the 
recent  decision  in  Ilrailshnw  v.  South 
UoNton  Uailioad.  VMi  Mass.  407;  «.  c,  46 
Am.  Uep.  4S1,  and  it  would  have  been 
the  duty  of  the  plaiiUitf  to  yie.<l  for  the 
tinia  bring,  and  pay  h\»  fare  anew,  or 
withdraw  from  tiie  car.  •  •  •  Unt  in 
the  present  case,  such  is  nottho  post- 

347 


t^^sBk 


r 


§246 


THE  CONTRACT  OF  CAKRIAOK.  [PART  III. 


passenger  paid  bis  faro  on  a  street  car  from  which  lie 
was  transferre*!  to  another  to  complete  the  journey 
and  the  second  conductor  ejected  hiiw  for  refusinjji;  to 
paj  again,  the  carrier  was  held  liable.' 


■■■■ 

,n 


§  245.  Liniitin^j:  Liability  lor  Negligence— as  to 
Paying  Passengers.  — Tiie  Anu'rican  rule-  applies  lu 
carriers  of  passenjicrs  as  well  as  of  goods,  and  there- 
fore, a  carrier  of  a  passengei',  who  has  i>aid  a  coiisid 
eration  for  his  passage,  cannot  exenijd  himself  fnmi 
liability  for  damages  caused  by  the  negligence  of  liim 
self,  or  that  of  his  agents  or  servants,  by  any  contiact 
which  he  may  have  imlnced  his  customer  to  appr(»ve, 
such  an  agreement  ln'ing  against  public  jMilicy.' 

§  240.      Duty  Toward  Free  and  Paying  Passen- 
ger the    Same. — Thi're  is  no  dillereuce  as  to  the  de 


tion  of  the  parties.  As  has  been  seen, 
the  plaintiff  not  only  was  not  Knilty  of 
nny  neuliKenrc  in  iicccptinK  his  ticket, 
l)tit  he  exiiniined  it  cniefnlly,  saw  every- 
thinfT  there  wos  on  it,  ami  reeciveil  cx- 
planationM  of  the  nH-aning  of  the 
panelled  holeH,  niiil  nsstirunceH  tliiit  the 
two  tickets,  in  the  ronilition  in  wliii'h 
they  were,  wonltl  be  kooiI  for  tlie  trip. 
In  sacli  a  cani',  there  bom);  no  niistiike 
or  inailvertoncc  on  liiH  part  in  the  re- 
spec'H  nientioneil,  and  llic  ticki'ts  «liieli 
were  (lelivcro'l  bfin^r  in  all  parliciilars 
i«U('ha»  were  iiitenili'd  to  be  delivereil, 
and  there  bcin^  iKitliiiiK  which  roiild  be 
ftatliered  by  inspection  to  show  that 
they  were  insulllcieiit,  and  no  notice  of 
their  ii\-.iilllcit'ncy  being  nivcn  to  the 
plaintiff  by  any  bu<l>,  or  in  any  form, 
until  be  had  already  entered  upon  ami 
partially  accoinplihlird  Iiim  journey  over 
the  detondant's  rond.  lie  miKi  t  well  in- 
sist npon  b(!inff  allowed  li>  complete 
that  join  ney.  If  the  defemtaiil'H  Miper. 
intendcnt  or  preHident  or  boili  of  them, 
had  been  standing;  by  when  the  |>lHiiitilf 
purchased  hix  tickets,  ^nd  bad  beard 
and  asKcnted  to  what  was  i^aid  by   the 

348 


ticket-seller,  and  if  they  also  wen-  un- 
ilcr  the  same  mistake  as  to  the  rulcH  es- 
tablished for  the  K<i>dnncr  of  con- 
ductors, the  IcKal  position  ot  the  plain- 
titf  Would  hardly  have  been  HlrmiKer 
than  it  in  at  prr>;ent.  It  would  still  be 
the  case  lliai  he  took  Iiim  tickelH  rclyin.,' 
on  tiie  iiimtaken  asHiirances  of  ilie  de- 
fendaiit'H  a(?eiil  in  respect  to  their  v.i 
lidity.  If  the  ilefetidaiit  through  any 
iniperfectinii  in  its  rules  or  nicllioiU,  or 
any  ignorance  or  violotion  of  rulcH  or 
intttructioiis  by  it--  aKenis,  has  been  led 
into  any  interference  with  the  ruflils  nf 
the  plaintiff  under  hiicIi  circiiiiiNlaiices, 
it  miiHt  abide  the  conseiiiiciK'.es.  To 
bobl  the  eoiitrary  would  be  a  burden 
upon  passcn^erH  such  as  is  called  forby 
no  reason  of  necessity  oi    expeiliency." 

1  Hamilton  v.  I{.  to,.  ft»  N.  V.  W. 

a  See  itntf,  §  l.'i;. 

'Mtailroad  Co.  r.  I.oekwood,  17  Wall. 
tr)7;  Ohio  etc.  U.  Co.  V.  Helby,47  Iiiil.47l  , 
Com.  c.  It.  Co.,  loM  AlaNH.  1;  H  .\m.  Uep. 
,SOI;  .lones  v.  K.  <o.,-iH  H.  W.  Uep.  HKi 
(Mo.) ;  Tibby  f.  U.  Co.,  m  Mo.  «i»<).  .\'id 
Hee  the  cases  arrnnxed  by  Htatur,  cited 
in  §  i:t7. 


CII.  XVI.]  TIIK  00\TIlA(rr  OK  rARItlAOK 


§247 


fTHM'  of  ciU"**  r('<|uii'('(l  of  II  carrier  whrn*  one  is  ridiiijx 
frco  with  the  carrier's  ((luscnt,  and  wliere  he  has  |»ai(l 
his  fare.  Herein  wi-  see  a  distinction  between  tlie 
baih'c  of  i^ixids,  whetlier  he  be  an  <»idinar_v  bailee  or  ii 
common  carrier,  and  tlie  carrier  of  passen.uers.  He- 
cause  tlie  bailor,  where  the  bailment  is  for  the  bailor's 
s(de  beiK'lil,  has  all  (he  beiielit,  the  law  re(|nires  him 
to  run  all  the  risk  except  that  of  tlu'  fraud  or  the  jj^ross 
ne},di;ieih('  amounting  to  fraud  of  (he  bailee,'  \W- 
cause  the  «'Xtraorilinarv  lialdlilv  of  the  carrier  of  <;oods 
is  fonndiMl  on  his  reward,-  where  that  n-waid  is 
wanting;,  llif  law  does  not  hnid  him  as  an  insurer.  Ilnl 
public  policy  has  re(|nired  another  rule  wher«'  the  lives 
and  limbs  of  human  bfin<j;s  are  the  subi«'ct-matler  of 
liic  undertaKin;;.  "When,"  sa.v  the  Suprem«' Court  of 
I  lie  Cnited  Siat«'s,  "carriers  umlertake  to  convey  per- 
sons by  the  powerful  and  danj^eroiis  agency  of  steam, 
piddic  pidicy  and  safety  nM|uire  that  they  be  held  to 
ilie  j^realest  possible  care  and  dili^iencc.  And 
whether  the  <(»nsi(U'rat ion  fur  such  transportation  be 
pecuniary  <ir  otherwise,  tin-  personal  safety  of  the  pas- 
senders  should  not  be  left  to  the  sptUi  tif  «'hance  or 
I  lie  nejili^icnce  of  caicb'ss  j.;4;ents.  Any  nej^li;;ence  in 
such   (Jlses   may    well    dese.-Ve   the  epithet    <if   ';^i'os.s.' "'* 


i2i7.  Wl.o  an»  FriM^  I*aMS4MiH;<M*H.  —  It  does  not 
take  t'le  Jiayinent  of,  ol*  the  ol)li^ation  lo  p;iy  fjile,  to 
nnike  Oil,'  ii   payin}4'  jtassen;;*'!'.     .\uy  iei^al  consi<h'ra- 


I  Hef  ante,  {  XI. 

■J  Sic  uHle,  i  Hi. 

3  riiiln.  tr.  11.  Co.,  ('.  Derby,  \i  Uuw. 
«tW;  The  «  cw  Wdijd  v.  KIiik.  1')  Hi>w. 
4ti'.'.  Hint  clc,  U,  Co.  r.  Will,  r  .Mich. 
Ml.  -.'i;  .Vm.  Uc|.  IW;  K«y  r.  Tho  Ni-vv 
Worlil,  1  Cat.  .lit:  <ior<ti>ii  v.  It.  Co.  4ii 
llBrli.  t>V\;  nKllann  U  Co.  r.  Miindy,  21 
ln<l.  4N;M.|  Am.  IH«.  .W.i.nhn.  ^Ir.  II  I  O. 
I  Mlilitmif,  ;«•  III.  It;  Nl  Am  Hoc  :1.H(1;  n 
liiiiii*  I  L-ut.  U.  Co.  r.  ltv»U,  :j;  ill.  484,  M7 


Am.  Uoe  2fl<t;  I'erkln«  r.  II.  Co.  24  N  V. 
?'<6.  K  Am.  Dec.  'Jul;  I- h.in  r.  1{.  (  .,  .  1 
iloiiiit.  4)l<.i;  'I'oilil  I'.  Ic.  C.i.  .1  Allfii.  IH.MO 
.\iii.  Dec  4!t,  7  .\!l*ii,  'inT;  I.etiion  f. 
<lil»ii>;|or,f,>)  Mo.  :U(),  m  Am.  K«' p.  "'••'•'; 
t.illciuVHttr  !•.  a.  Co.,'.  linl.  ;ti;».  ill  .Viu. 
I  ><•('.  mi;  Ohio  fir.  It.  <d.  r.  Mikltrtii,  71 
Inil.  271,  \Vatrrliiir>  r  It  Co.,  17  K«il. 
It«p  1,74;  lUiT  1  I! Co., 22  in.(App.)  648; 
,"<Ule  f   K.  Co.  6*  .MJ.  4»;'. 

349 


jr^ 


?,  247 


THE  CONTRACT  OF  CARRIAGE.  [PART  III. 


tion — any  bouefit  to  the  carrier  or  detriment  to  the 
passenger* — is  enough.-  One  is  not  a  free  passeuoci- 
who  is  given  a  drover's  ticlvet,  called  a  free  pass,  t»» 
travel  with  his  stock,  for  the  price  he  pays  for  the  car- 
riage of  the  cattle,  or  the  care  which  he  is  to  take  of 
theui  on  the  journey,  furnishes  a  consideration  for  the 
transportation  of  himself.^  Nor  one  who  is  an  express 
messenger  riding  free,  in  charge  of  the  express  matter 
under  a  contract  between  tlie  railroad  and  the  express 
comi)any,  for  the  railroad  receives  its  compensation 
from  the  incidental  benefits  of  the  contract  of  carriage 
of  the  exi)ress  matter.^  Nor  one  who  hus  been  invited 
by  the  oflicers  of  a  railroad  to  arrange  concerning  the 
use  of  an  invention  of  his  by  the  railroad,  the  latter 
to  pay  his  expenses,  and  furnish  him  a  "free  pass" 
to  their  city,  for  the  pass  was  part  of  the  consideration 
indtK'ing  the  i)laintift'  to  take  the  journey."'  Nor  one  to 
whom  a  pass  has  been  given  as  part  consideration  for 
the  leasing  by  his  employer  of  a  pleasure  resort,  owned 
by  the  carrier." 


1  See  Lnwson,  Contr.,  Cap.  IV.  Consid- 
eration. 

'i  It  is  held,  however,  in  New  York 
that  one  trav?linf;  npon  a  pass  good  for 
free  passage  in  the  ordinary  cars  of  the 
railroad  company,  doei;  not  by  payinp 
extra  for  transportation  in  a  drawing- 
room  car,  become  a  passenger  for  hire. 
Ulrich  V.  U.  Co.,  108  N.  Y.  80;  2  Am.  St. 
Bep.  HiH) ;  15  N.  E.  Rep.  60. 

3  Railroad  Co.  v.  I.ockwood,  17  Wall. 
3.57;  Cleveland  etc.  R.  Co.  r.  Cnrran,  19 
Ohio  St.  1;2  Am.  Rep.  iiG2;  Cincinnati 
etc.  K.  Co.  r.  I'ontins,  19  Ohio  St.  221; 
Knowlton  v.  II.  Co.,  19  Ohio  St.  260;  2 
Am.  Rep.  305;  Pennsylvania  R.  Co.  v. 
Henderson,  51  }'a.  St.  315;  Pennsylvania 
R.  Co.  r.  McCloskey,  23  I'.i.  St.  526;  Gol- 
dey  f.  R.  Co.,  20  I'a.  St.  242;  72  Am.  Dec. 
703;  Flinn  v.  R.  ^o.,  1  Uonst.  469;  Ohio 
etc.  R.  Co.  V.  Selby,  47  Ind.  471 ;  17  Am. 
Rep.  719;  Maslin  v.  R.  Co.,  14  \V.  Va.  180; 

350 


.15  Km.  Rep.  748;  Railroad  Co.  r.  Reaver, 
41  Ind.  493;  Litile  Rock  etc.  R.  Co.  r. 
Mile9,40  Ark.  298;  48  Am.  Rep.  10;  Cur- 
roll  r.  R.  Co.,  88  Mo.  239;57Am.Rep.3ti2; 
Mo.  I'ac.  R.  Co.  r.  Ivey,  9  S.  W.  Rep. 
346;  I.ftwson  r.  R.  Co.,  64  Wis.  447  ;  54  Am. 
Rep.  634;  Ohio  etr.  1£.  Co-  v.  XicklesH,  71 
Ind.  271 ;  Tibby  r.  R.  Co.,  82  Mo.  272.  An 
action  for  personal  injuries  sustained 
by  the  owner  of  hor.<<es  while  traveling 
with  them  on  a  drover's  pass  is  not 
barred  by  a  jrdgnient  for  the  injury  the 
horses  received  in  the  same  accident. 
Watson  v.  R.  Co.,  27  S.  W.  Rep.  924  (Tex.) 

4  Blair  r.  R.  Co.,  66  N.  Y.  313;  23  Am. 
Rep.  55;  Kenncy  i-.  R.  Co.,  7  N.  Y. 
(Supp.)  255;  eon<ra.  Rates  v.  R.  Co.,  147 
Slasa.  255. 

5  Grand  Trunk  R,  Co.  v.  Stevens,  95 
U.  S.  6.55. 

ti  Camden  etc.  R.  Co.  v.  Pascb,  7  All. 
Rep.  731. 


.-^_w«."' 


CII. 


XVI.] 


THE  CONTRACT  OF  CARRIAGK. 


§248 


And  it  does  not  mattor  that  tlio  person  is  tlescribod 
on  the  ticket,  or  in  the  contract  as  "ridini;  free,"  or 
tliat  the  ticlvet  is  called  a  *'free  ticket,"  or  a  "fn'e 
pass/'* 

§  248.     liimitiDg:  Liability  for  Negligence— as  to 

Free  Passengers. —  But  tlie  following  (iiiestion  is  still 
an  unsettled  one,  viz.,  whether  in  the  case  of  a  free 
passenj.':er  the  carrier  should  not  be  i)crniitti'd  to  throw 
upon  him  all  the  risks  of  the  joiii'iicy,  in  consideration 
of  the  ji'ratuitous  service  rendered  him.  In  Ala- 
bama,- Iowa,'  Minnesota,'  Missouri,'  Pennsylvania," 
Texas,^  and  so  far  as  it  has  been  able  to  express  an 
(>I>inion,  the  Supreme  Court  of  the  Tnited  States,'* 
the  carrier  cannot,  even  in  such  case,  by  any  contra(  t 
he  may  make  with  such  a  passen»i;er,  escape  liability 
for  the  nejili^'ence  of  himself  or  his  servants. 

In  Maine  and  Massachuseit.^-  and  \Vashinj;ton,  one 


1  Thcso  expressions  mean  nothir.g 
moro  than  that  the  holder  is  to  be  'iib- 
Ji'Cted  to  no  aiUHtumnl  charge,  .md  thiit 
he  is  to  pass  free  o(  the  usual  fare  ex- 
acted of  othera.  Cleveland  etc  1{.  Co. 
r.  Cnrran,  19  Ohio  St.  !  ;  'I  Am.  Uep.  3t>H  ; 
cotifrn,  Uissell  r.  K.  Co.,  2.")  N.  V.  Ul. 

3  Mobile  etc.  U.  Co.  v.  Hopkins,  41  Alu. 
48«;  <.t4  Am.  Pec.  6(i7. 

1  Kose  i:  11.  Co.,. S<)  Iowa,  246. 

4  .)acohn.sc.  V,.  Co.,  20  Minn.  125;  18 
Am.  Uep.  3fi0. 

■1  ISryan  t:  U.  Co.,  :i2  Mo.  (App.)  228 
(18SS). 

<i  IJnffalo  etc.  U.  Co.  r.  O'Uara,  9  Am. 
,l' KuR.  Corp.  Cas,  321;  Railroad  Co.  r. 
O'Uara,  12  Wi'ok  Notes,  47:i;  I'cnn.  I!. 
Co.  1-.  Hutler,  57  C.i.  St.  ,S35;  Camden  etc. 
U.  Co.  r.  I'ausch,  7  Atl.  Uep.  731. 

7  linlf  etc.  H.  Co.  f.  MctJown,  tl5  Tex. 
G40. 

!t  Railroad  Co.  i-.  I^ockwood,  17  Wall, 
3o7,  whi '.h  was  tht>  case  of  a  "drovers 
pass."  The  court  held  the  plaintiff  to 
bo  u  passcngci  for  hire  and  that  an  ex- 
emption on  the  ticket  from  liability  for 
negligence   was   against   public  policy 


and  void,  lint  in  the  course  of  his  ablo 
and  elaborate  jiidKincnt  .Mr.  Justice 
l!rad!ey  said:  "Wo  <lo  not  mcMi  to  im- 
ply, )  owcvcr,  that  we  Hliould  have  come 
to  n  i.ilfercnt  conclu.iion,  had  the  plain- 
tiff ben  a  free  passenger  in.Mtead  of  a 
passenger  for  hire.  We  are  aware  that 
respcct.'il)le  tribunals  have  asserted  the 
right  to  Mlipiilate  for  exemption  in  such 
a  case  ;  audit  is  often  nnked  with  ap- 
parent conlldcucc:  'May  not  men  make 
their  own  contracts,  or  in  other  tvordn, 
may  not  a  man  clo  what  he  will  witli  his 
own'f'  The  (luestion  at  llrst  sight  seems 
a  simple  one.  Hut  there  i.i  a  ijuestioii 
lying  behind  that:  'C;in  a  m-in  call  thai 
ab.xolutfly  his  own,  wliic^li  he  holds  as  a 
great  public  trust,  by  the  public  grant 
and  for  the  public  use  as  well  £S  his  own 
profit?'  The  business  of  the  common 
carrier,  in  this  country  nt  least,  is  em- 
phatically a  brunch  of  the  pi. bite  ser- 
vice; and  the  coiiditioHS  on  which  that 
public  service  shall  be  perlornicd  by 
private  enteriirisc  are  not  yot  entirei," 
settled." 


§248 


THE  CONTRACT  OF  CARKIAGE.  [PAHT  III. 


•1-1 
■'■J 


r-  - 


who  accepts  a  free  pass  as  a  pure  gratuity  on  condition 
that  ho  will  assume  all  risk  of  personal  injury,  is  bound 
by  the  condition,  whicii  is  efTectual  to  exonerate  the 
carrier  from  liability  for  the  negligence  of  his  ser- 
vants.* In  Connecticut  it  is  held  that  a  condition  in  a 
free  pass  that  the  carrier  shall  not  be  liable  for  Ihe 
negligence  of  his  sen'ants  or  otherwise,  is  valid  and 
binding,  and  will  protect  the  carrier  from  even  the 
gross  negligence  of  his  servants.-  ..  And  the  same  rule 
prevails  in  New  Jersey,"'  and  Louisiana.*  In  Illinois 
it  is  held  that  the  exemption  from  liability  in  a  free 
pass  covers  the  negligence  of  the  servants  of  the  car- 
rier, which  is  not  gross  or  willful;^'  and  the  same  ruling 
has  been  mnde  in  Indiana,'"'  and  Wisconsin.'^  New 
York,  as  in  the  case  of  the  carriage  of  goods,  considers 
any  contract  exempting  the  carrier  from  liability  for 
the  negligence  of  its  servants,  no  matter  of  what  de- 
gree, valid  and  binding,  whether  it  be  in  a  drover's  ])a  js 
or  other  so-calle«l  free  ticket  really  issued  for  a  con- 
sideration;*^ or  an  absolutely  free  ticket,"  provided  only 
the  intention  to  include  negligence  is  clearly  ex- 
jtresscd,  and  the  negligence  is  not  that  of  the  corpora- 
tion itself.'" 


1  Koiters  r.  Kennebeck  Steam  Co.,  20 
Atl.  Ili'p.  10G9  (Me.) ;  Qtiimby  v.  \i.  Co., 
23  N.  \V.  Uep.  205  (Maes.) ;  anil  sec  Halcf, 
f.  K.  Co.  147  Mass.  SS.'i;  Mnldooii  v.  K. 
Co.SM'ac.  Hep.  422;  m  I'ac.  Hop.  '.«».') 
(Wash.). 

-'  <iriswold  f.  R.  Co.,  B3  Conn.  371;  55 
Am.  Uep.  115. 

I  Kiuney  v.  K.  Co.,  H'i  N.  J.  (I..)  407; CO 
Am.  Dec.  67,5;  34  N.  ,J.  (L.)  51.4;  a  Am. 
Uep.  ififi. 

4  lIiKKins  V.  K.  Co.,  2S  I.».  Ann.  133. 

•1  Anidlil  V.  K.  Co.,  til  111.  '^r.i.  25  Am. 
Hep.  .S83;  lU.  Cent.  U.  Co.  v.  Heart,  37  111. 
4S4. 

«  Indiana  Cent.  H.  Co.  v.  Mnndy,  21 
Inil.  ■■"<;  sa  Am.  Dec.  :i3it. 

7  Annas  V.  H.  Co.,07  Wis.  46;  67  Am. 
Kep.  .s;it*. 

352 


s  Ponchcr  r.  U.  Co.,  49  N.  Y.  203 ;  in  Am. 
Hep.  304;  Smith  r.  U.  r().,2it  Barb.  i:!2; 
24  N.  Y.  222;  Stinson  r.  H.  Co.,  32  N.  Y. 
.133;  88  Am.  Dec.  3.32;  HoBwell  r.  H.  Co., 
5  Mosw.  •;<.«»;  10  Abb.  I'r.  443. 

!i  Welles  r.  li.  Co., 'ir>  Itarh.  641;  24  N. 
Y.  IHl;  lerkins  i:  U.  Co.,  24  N.  V.  ]!>«; 
Clricb  r.  II.  Co.,  108  N.  Y.  SO;  2  Am.  H. 
nop.  .369;  l.")N.  E.  Kep.  60. 

liilnSmitU  r.  H.  Co.,  -J.  !larb.  132,  24  N. 
Y.  222,  a  drover's  pass  containod  liie 
condition  thai  tlio  pa.^senger  rode  free 
"at  his  own"  risliiif  personal  injury /i-ohi 
whatertr  carut.  The  injury  was  caused 
on  account  of  an  old  craiRrant  car,  nn- 
safo  by  reason  of  having  a  Mat  wheel, 
beinf?  ^ittached  to  the  train.  The  plain- 
tiff had  ind^^ment  for  $5000,  which  f.n  ap- 
peal to  the  Supreme  Court  was  aflii mud. 


CII.  XVI.]  THE  CONTRACT  OF  CARRIAGE. 


§:^49 


§  249.  Arguments  in  Support  of  the  Diirerent 
Views. — The  courts  of  only  fifteen  States  hsiviuj;- 
passed  upon  the  question  in  nearly  half  a  century,  it 
cannot  be  said  that  there  is  any  rule  which  can  be  said 


The  contract  did  not  expressly  except 
negligence.  Nor  would  the  words  "from 
whntevercanse"  be  construed  to  include 
negligence.  The  case  was  then  taken 
to  the  Court  of  Appeals,  where  the  Judg- 
ment below  was  allirmed  by  a  divided 
court— Uvii  Judges  against  three.  Wright, 
J.,  held  that  the  negligence  was  that  of 
tlie  corporation  itself  in  furnishing  an 
iiiiHafu  car;  that  the  words  in  the  pass 
"fioiii  whatever  cause"  did  not  include 
negligence;  that  plaintiff  was  not  a 
gratuitous  iiuspengcr  and,  therefore,  the 
contract  was  clearly  void.  lie  also  ex- 
pressed the  opinion  that  a  contract  which 
"would  obviously  ena!-le  the  carrier  to 
avoid  the  dutiei;  wliich  the  law  enjoins 
a.-i  regard  to  the  safety  of  men,  enconr- 
nue  negligence  ami  fraud,  and  take 
away  the  motive  of  self-interest  on  the 
pari  of  such  cairier  which  is  perhaps 
the  only  one  adequate  to  secure  the 
highest  degree  of  caution  and  vigi- 
lance," was  contrary  to  public  policy 
even  where  no  faro  was  paid.  Smith, 
.J.,  agreed  with  Wright,  J.,  on  the  llrst 
point.  Denio  and  Davies,  J.J.,  were  of 
opinion  that  a  contract  exempting  lia- 
bility for  negligence  of  agents  or  serv- 
ants was  valid  as  to  a  purely  gratuitous 
passenger  bnt  not  as  to  a  paying  passen- 
ger, whicli  the  plaintitf  was.  Suther- 
land, J.  cojicurred  in  aflirming  the  Judg- 
ment on  the  ground  that  the  contract 
for  exemption  for  negligence  was 
void,  irrespoctive  of  the  question 
whether  the  transportation  was  grat- 
uitous or  for  hire.  Selden,  C.  J.,  A'- 
Icn  and  Gould,  JJ.,  dissented.  Jn 
Perkins  r.  H.  Co.,  24  N.  Y.  1!»6,  tl  e 
ticket  was  an  absolutely  free  one  by 
which  the  railroad  Mas  not  to  be  liable 
under  any  circumstances,  "whether  of 
negligence  of  their  agents  or  otherwise, 
for  any  injury  to  the  person  or  for  any 
loss  or  injury  to  the  property  of  the  i>as- 
senger  using  this  ticket."  While  going 
in  defendant's  cars  from  Kochester  to 
Albany,  he  was  killed  in  consequence  of 

24 


the  bre.Hking  of  a  bridge.  It  was  proved 
that  the  bridge  was  built  of  iinsuilablo 
materials  negligently  used  by  the  track- 
master  of  the  road  in  its  construction. 
A  Judgment  for  plaintiff  was  reversed 
by  the  Court  of  Appeals,  K.  1>.  Smith,  J., 
■  .lying:  "The  contract  makes  no  excep- 
tions in  res))cct  to  degree  of  negligence. 
It  embraces  all  degrees.  It  uses  the 
term  negligence  in  its  general  generic 
sense.  To  hold  that  it  does  not  em- 
brace gross  nejrligence  is  to  interpolate 
into  it  a  qualilh  ation  not  made  by  the 
parties,  and  which  tends  materially  to 
impair  and  nullify  its  force,  for  the  pat- 
ties well  knew  that  accidents  were  lia- 
ble to  result  from  the  gross  negligenje 
of  defendants'  agents  as  well  as  fr"..i  in- 
ferior negligence.  The  contract  related 
to  the  act!t  of  third  persons,  acting  as 
agpntf  of  ihe  ilcfcndants.  Perkins  agreed 
to  take  his  risk  in  respect  to  the  negli- 
gence of  such  third  persons.  Uo  took  it 
entirely.  If  the  agents  were  guilty  of 
criminal  negligence,  which  is  only  an- 
other name  for  gross  negligence  when 
it  causes  death  or  injury  to  life  or  limb, 
the  agent  himself  is  punishable  crimi- 
nally for  such  negligence.  The  princi- 
pal never  could  be  so  punished.  Ilia 
civil  responsibility,  therefore,  is  dis- 
charged by  the  contract.  There  is  no 
reason  why  the  defendants  should  be 
responsible  for  the  gross  negligence 
of  their  agents,  more  than  for  slight 
negligence."  Selden,  C.  J.,  Denio,  Da- 
vies,  Allen  and  Gould,  JJ.,  concuiTed. 
In  Hissellr.  R.  Co.,29  Barb.602,  25  N.Y., 
442,  the  ticket  was  a  stock  pass,  with 
conditions  similar  to  those  in  the  Per- 
kins case,  except  that  be  had  signed  at 
the  time  of  delivery  of  the  stock  a  con- 
trict  by  which  it  was  agroed  that  the 
perb.7n£  "riding  free"  to  take  charge  of 
the  stock  did  so  at  th<.ur  own  risk  of 
personal  injury  from  whatever  cause. 
The  holder  was  killed  in  a  collision, and 
the  Jury  rctured  a  verdict  against  the 
company  for  $6000,  linding  that  the  death 

35a 


jm^ 


§249 


THE  CONTKAOT  OF  CARKIAOK.  [PART  III. 


'■^% 


•••r 

C. 

c 

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C 

«•«« 

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t* 

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<«irv 

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f} 

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■  ,.i 

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•*'■■ .... 

rr-  ^ 

:::r. 


to  be  the  American  <loftrine  on  the  snbje<t.  Th<' 
fourts  of  tliose  States  in  which  the  qnesli«»n  \h  not  yd 
judicially  determined  n'niain  free  to  adopt  that  view 
which'  nmy  Heem  to  tliem  most  in  harmony  with  the 
principles  of  justice  and  sound  reason,  and  most  con- 
ducive to  the  i)ublic  ffood. 

The  arji;uments  on  the  one  side  may  be  summed  up 
as  follows: 

1.  While  (he  relation  of  carrier  and  passenger  is 
created  by  contract,  one  duty  of  the  carrier  is  indepen- 
dent of  contract,  is  not  the  subject  of  contract,  exists 
witlwnit  it,  and  cannot  be  dispensed  with  by  it.  This 
duty  of  the  carrier  to  iise  the  hij;;hest  <le<jjree  of  care 
to  insure  the  safety  of  the  passenj;<'r,  is  not  allowed 
to  be  settled  by  a  contract  between  carrier  and  pas- 
seuf^er,  because  the  emi»loyment  is  a  matter  not  (»f 
private,  but  of  i)ublic  concern.  This  duty  is  a  public 
one  because  it  is  founded  on  a  re;;ard  foi-  the  safely 
of  the  passenj^er  not  on  his  own  account,  but  as  a 
citizen  of  the  Stat«',  and  <;rows  out  of  the  interest 
wliieli  the  }^over!iirient,  as  pnrnis  jxitrUit;  has  in  protect 
in;;'  the  lives  and  limbs  of  its  subjects.  Whethei-  the 
l)assenji;(>r  is  one  for  hire,  a  mere  gratuitous  ])assenp,('r 
or  a  gratuitous  ]>assen^er  who  has  bargained  away  his 


of  liihKell  waH  oauKoil  by  th«  Kross  nt'R- 
li({L'iicu  of  till!  nKonts  mid  ecrvants  of 
the  ilcfcndants,  the  cifuit  JiiiIko  cliarK- 
inj{  tliem  on  the  (iilfi-rent  ilcKreeB  of 
npj;liB<>nce  iih  rccot;iiizr<l  liy  the  com- 
mon Inw,  niid  that  tlie  dcfriidantK  oonid 
only  Ix!  h"ld  liftble  for  (jross  noRliKeiico. 
On  appeal  to  the  Siipn'ine  Court  the 
]ud;;iiient  was  iinnniinoii.sly  iilUrnicd, 
opinionB  bclnfr  delivered  liy  John- 
eon,  Strong  anil  Smith,  .),).  On  ap- 
peal to  the  Court  of  .\ppeiils  thiM  jiidg- 
ment  was  reversed ,(ioiild,,Selden,  Smith, 
DavieH  and  Allen,  .J.I.,  volinK  for  re- 
versal, Dcnio,  (\  J.,  and  WriRhl  ancj 
SnlluTland,  .)J.,  diasentin);.  (iould  and 
Holdcn,  JJ.,  held  that  he  waa  a  free  pais- 

3D4 


sender,  and  could  not  show  that  the  eon- 
Hideration  paid  for  the  carriaKO  of  Ilia 
stoek  entered  into  the  considoration  for 
his  own  transportation,  hIiicu  he  hail 
expressly  adiiiilli'd  that  he  was  "riding' 
free."  And  in  tlirir  opinion  e.oiitraei 
cxeinptiiiK  liability  for  nefrlineneo  of 
servaiitH  or  axents  were  valid  in  the  eane 
of  Knitiiitous  carriaKi!  of  a  paHMonKer. 
Smith,  J.,  MiouKht  the  ease  was  settled 
by  the  deeison  in  the  Welles  and  I'ei  ■ 
kins  caseH.  Denio,  C.  J.,  wan  of  the 
opinion  that  if  lllssell  were  a  free  pa-^- 
seni^er  the  I'erkins  ease  must  conclude 
the  plaintilf  from  r^coverlnj?.  Hut  in 
his  opinion  the  plauitlff  was  not  a  free 
paHsenger. 


en.  XVI.] 


THE  CONTRACT  OF  CARKIAOE. 


§249 


individual  rights,  tlio  intorost  of  the  Stato  in  liis  safety 
as  one  of  its  citizens,  is  pnnisely  tlie  same. 

2.  If  it  is  objected  tbat  it  is  nurcasonable  to  suppose 
that  the  carrier  will  lessen  his  vigilance  and  care  for 
the  safety  of  his  vehicles  and  his  passengers,  binause 
then'  nuiy  Ik*  a  f<*\v  on  boanl  for  whom  1m'  is  not 
responsible,  this  could  be  urged  with  equal  force  and 
propriety  in  the  case  of  a  merely  gratuitous  passenger, 
as  in  a  case  of  one  who  has  contracted  away  his  rights. 
Vet  in  every  court  in  this  country,  as  we  have  seen, 
the  carrier  is  held  to  the  same  degr;*e  of  liability  for  a 
gratuitous  j)asNenger  as  for  a  ]»assenger  for  hire.'  Suj)- 
])()sing,  however,  (what  is  not  improbable,  as  in  the 
case  of  a  free  excursion),  that  most  or  all  of  the  pas- 
sengers upon  a  train  were  gratuitous,  or  riding  upon 
free  passes,  containing  a  release  of  liability,  the  abov<' 
argument  would  b(>  no  answer  to  a  claim  that  the  car- 
rier should  be  responsible.  A  general  rule  <an  not  be 
bfised  upon  such  cahulations  of  chances. 

li.  The  more  stringent  the  ijirrier's  liability,  and 
the  more  rigidly  it  is  enforced,  tln'  greater  will  be  the 
care  he  will  exercise,  and  more  approximately  jterfect 
the  Siifety  of  all  passengers.  J'ecuniary  liability  for 
neglect  jtromotes  care.  To  allow  an  exception  in  th(» 
case  of  free  i)assengers,  would  encourage  negligence  by 
diniinislilug  the  motives  for  diligence.  The  unvary- 
ing enforcement  (>f  his  liaidlity  for  neglect  in  all  cases 
brings  home  to  him  in  the  most  forcible,  and  eJTectnal 
way,  the  necessity  for  strictly  fultilling  his  obligations. 
It  might  be  that  on  a  given  occasion,  the  gratuitous 
j)assenger,  or  the  ]>iisseng«'r  upon  a  free  pass  was  tin* 
only  jierson  injured,  or  the  only  party  who  will  sue 
the  carrier,  and  thus  pra(  tically  enforce  npon  him  the 
importance  of  a  faithful  discharge  of  his  «iuly.     Es- 

1  See  ante  J  '246 

350 


ir^ 


§249 


THK  CONTUACT  OF  CAUUIAOE. 


[I'AUT  HI. 


■;.  -J 


::;x; 


(•a|»inK  in  sinli  a  caisc  from  liiibility  at  the  suit  of  (his 
kind  of  a  passonffcr,  lie  would  csiapc  all  liability  what- 
ever. 

On  the  other  siile,  it  is  insisted  that  there  will 
scarcely  he,  at  any  time,  so  many  persons  travelinj^ 
upon  free  passes  with  conditions  limiting;  lia 
hility,  as  to  tempt  tluM-arrler  to  be  less  careful  in  the 
mana;;ement  of  his  vehicles  or  in  anv  other  dntv  whidi 
he  is  bound  to  perform  towards  payinji;  j)ass('nj;('is.' 
The  carrier  and  the  passen;::er  cannot  be  said  to  stand 
on  an  uiu'(|ual  Htotin^,  as  is  the  case  where  the  carrici- 
exacts  a  limited  liability  for  the  <ai'iiaj^e  of  ^oods  or 
pass('n;;<'rs  for  hii'e,  for  he  is  n<»t  likely  to  urjje  u|i()ii 
others  (he  acceptance  of  free  passes  with  conditions, 
and  one  who  makes  a  ^ift  should  certainly  have  a  ri^^ht 
to  pres<ribe  the  terms  on  which  it  is  }j;iven.'  TIm'  ser- 
vice (toward  the  passenjAcr  with  a  conditional  free 
pass)  which  he  undertakes  to  perform  is  one  which 
he  is  under  no  obli^iation  to  i)»'rfoitu,  and  is  outside  his 
ren;uhir  duties.  In  yieldinj;  to  the  solicitation  of  the 
passenjjer,  he  tousents  for  the  time  beinj^  to  put  oil" 
his  public  employuu'Ut  and  do  that  which  he  is  not 
bound  to  do.-'  'J'ho  carrier  who  transports  a  passcii 
p'l'  p'atuitously  is  anaiojjous  to  a  bailee  for  the  solo 
benetil  of  the  bailor,  and  like  him,  sluMild  be  held  re- 
sponsible for  };ross  lu'j'h'ct  only.^  I'inally,  the  fact 
that  Ji  p;r.»t nitons  passenj^er  is  obli<;-ed  to,  ajiree  to 
travel  at  his  own  risk,  will  not  only  mak<>  him  nu)re 


■  ItOKurs  t'.  KunDub«ck  Sii-am  Cii.,  '.".t 
All.  Krp.  1009  (Mu.)  ;  (iiiiiiiby  r.  1{.  Co., 
2M  \.  K.  lU'p.  205  (Mass.). 

S  tiiiimby  f.  U.  (•o..'iJ  N.  K.  Kep.  20.'i; 
(Mn.HH.)  ;  (iritiwnltl  i'.  It.  Co.,  0,3  Coiiii. 
8<1:  MV  Am.  Uep.  lift. 

»  giiiinby  V.  n.  Co.,  2H  N.  K.  Hep.  2i>ft 
(Mns8.).  Hilt  why  (Iocs  ho  not  as  wfll 
"put  off  liiH  public  uiiiphiyniuiit"  whi>n 
the  paii&ciiKur  is   carried  (ruu  without 

ma 


any  limiting  nKrocmrnt?  The  carrier  is 
not  bounil  to  carry  fnio  of  charue,  yet 
aH  \\c  have  seen  he  is  liable  to  the  saine 
cnre  in  such  case  a»  if  ho  nrcrc  currying 
for  hire. 

*  AnnaB  v.  U.  (Jo.,  67  Wis.  46;  87  Am. 
Kep.  3SS;  Qiiiinby  r.  K.  Co.,  2.1  U.  W. 
Uep.  2().'i  (Mass.).  Thin  nricniiicnt  isKiif- 
llriently  nnswcrcil  in  I'hiladclphi.i  etc. 
U.  Co.  1'.  lierby,  U  II.  ,v.  46N,  a  ite. 


CH.  XVI.]  THE  CONTRACT  OF  OAUUIAOE. 


§  250 


careful,  but  will  tend  to  dliuluiHb  the  iiuiuIkt  of  p.iHSOs 

iKSUC'd.' 

§  250.     Special  Contractw  with  Passengers. — The 

passcu^or  may,  by  special  coutract  willi  the  carrier, 
obtain  the  rij;ht  to  be  carrie<l  to  a  particular  i)lace 
or  within  a  certain  time,  in  which  case  the  carrier  is 
liable  absolutely  for  the  breach  of  his  aj^reement.'-  If 
he  has  aj^reed  to  carry  the  ])assenj;er  on  a  particular 
vehicle,'^  or  to  a  i)articular  jdace,^  or  on  a  particular 
day,''  no  plea  of  tlanj^er  or  act  of  (Jod  or  othei*  Impos- 
sibiiity  will  hv  In'ard.  If  a  passenj;('r  has  contracte*! 
for  a  particular  seat,  he  cannot  be  compelled  to  take 
another,"  and  he  may  take  his  seat  at  any  time  dur- 
ing the  journey,  and  the  carrier  must  not  fill  his  pla<'e 
with  another  passenp,er."  A  jiromise  by  a  sleeping; 
car  comi>any  that  a  certain  berth  or  se<*tion  will  be 
resei'ved  for  the  ]>laintifi'  constitutes  a  contract  with 
him,  and  it  is  no  defense  that  another  ])erson  demanded 
it  before  the  i)laintitT  presented  himself  to  oceui)y  and 
pay  for  it,  and  that  there  was  no  other  unoccupied.** 


1  RoRcrs  c.  Kennebec  Steam  Co.,  29 
Atl.  Ui'p.  11)89. 

•■I  lluwiinl  V.  Oobb,  19L.  K.  ,S77 ;  Imlinn- 
apoliH  elc.  K.  Co.  r.  Hirney,  71  111.  391; 
Unwcroflf.  K.  Co., '21  L.  .J.  Q.  ».  17S; 
lloliln  V.  I{.  Co.,  L.  U.  10  g.  M.  Ill ;  Hein 
r.  Mc('iiiiKlian,.'<2  Miss.  17;  New  Orleans 
etc.  U  Co.  V.  Hurst,  .V,  Misa.  fit'ii);  74  Am. 
I>er.  78,'.;  I'ortcrr.  The  Now  Knj?laiul,  17 
Mo.  CT);  Florida  etc.  U.  Co.  v.  Katz,  23 
Fin.  l.i't;i  .South  Kep.  47,S. 

3  Williams  v.  Vanderbilt,  2S  V.  Y.  217; 
84  .\iii.  Doc.  3X\;  29  Hiirb.  491;  Ward  v. 
Vanc|i'rliilt,4  .Vbb.  App.  521. 

4  M('(;ioin  r.  Henderson,  6  La,  715; 
The  Canmlian,  1  Hiown  .Vdm.  11 ;  Cop- 
pin  r.  Itrathwaitc,  8  Jiir.  ST.") ;  Sunday  v. 
Gordon,  1  Itlatclif.  *  H.  5ii9;  Dnnnison 
t'.  Ihi' Walaga,  1  I'liila.  4r.s ;  I'orter  v. 
The  New  Knglanil,  17  Mo.  i'.in;  West  v. 
The  UncleSam,  1  McAll.  6u5i  Urown  v. 


Harris,  2  Orfty,.^,^;  Watsonr.Pnykinck, 
a  .Johns.  ,"!:(.);  Thompson  v.  II.  Co.,  W 
MisH.  ,H15;  19  Am.  Kep.  12.  While  u  pas- 
Kcnger  hast  no  riRlit  tr>  insist  upon  bein)( 
put  utr  a  train  at  a  place  not  a  rc^'ular 
Hiation,  a  contract  to  ptit  him  olf  there 
maybe  implied  from  custom.  Hull  v. 
n.  Co.,  fi6  Tex.  012;  2  S.  W.  Kep.  8:n. 

fi  Walsh  V.  U.  Co.,  42  Wis.  23;  24  Am. 
Kep.  370. 

0  LonK'  V.  Hornc,  1  Car.  4  V.  610. 

7  Kit  r.  Mountain.  1  Ksp.  27. 

«  I'nll.  Cat.  <  ar  f'o.  r.  Booth,  28  S.  W. 
Ri'p.  719  (Ti'X.),  the  Court  saying:  "The 
dtMii.iiid  for  till'  bcTtli  on  the  one  hand, 
and  the  j)romise  to  furnish  it  on  the 
other,  constiliitcd  a  Cdntract,  which  ob- 
ligated her  or  her  hiis|)and  to  pay  for  the 
same,  and  (il)ligattMl  the  company  to  fur- 
nish it. and  thcso  tiiiitiial  obligations  and 
promises  coustitutud  a  valid  considers • 

357 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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I.I 


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1.8 


L25  iu  mil  1.6 


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1' 


Hiotographic 

Sciences 

Corporation 


33  WEST  MAIN  STREET 

WEBSTER,  N.Y.  M5S0 

(716)  873-4503 


r 


CHAPTER  XVII. 


THE   DUTIES    AND    LIAHILITIES    J)UUINCr   TKAXSIT, 


«... . - 
C    -- 

■:.:i.:3 


v-TioN  251.  Must  Kurnisli  Heat. 

252.  And  Mcauii  of  Itefresliincnt. 

253.  Must  carry  rassenyer  to  Destiuatiou. 

254.  Must  enable  liiui  to  Laiul  Safely. 

z^tti.  Powers  of  Carrier  to  Kstahlisli  IJeujulatlons. 

iiSi).  Passenf^er  may  be  Hj(!(;teil  for  Violation  of  llegulations, 

257.  Mode  aud  Place  of  lOjcctioa. 

258.  Passeiifier's  IJi^ht  to  Kchist  Ejection. 

259.  No  lli^lit  to  Imprison. 

260.  Non-payment  of  Fare. 

261.  Kequirini;  I'revious  Purchase  of  Tickets. 
2G2.  Sliowin.:^  and  Hurrentlerin;?  Ticket. 

26a.  Other  Ueuulations  a<  to  Tickets. 

264.  t/'oncerninj;  use  of  Carrier's  Prcnnises. 

2G5.  Classillcation  of  Passcimors. 

2G0.  I'iisseniiers  on  Frcij^hl  Ti'ains. 

267.  Dan.^erous  aud  Disorderly  P.i-seiii^ers. 

2G8.  Notice  of  Regulations. 

2G'J.  Persons  under  Physical  or  Mental  Disability. 


§  251.      3IuHt    Furnish    Seat.—Tlic  conlriKt  of  a 

carrier  by  rail  is  not  ouly  to  furnish  a  passcnj^or  witlj 

transportation,  but  comfortable  transportation.     TJic 


lion  for  the  contriict.  Defenilant  having 
coutractud  to  I'miii^i  si'c.tion  2  of  thu 
sliiopinff  car  for  liiT,  it  wa-i  bound  to 
rusiTvo  tlio  sanH!  tor  her,  and  it  could 
not  »'\('US(!  the  failure  to  coriiply  with  its 
undcrtakinT  upon  thi;  ground  tliat  oilier 
jiersons  (leinandrd  ttio  same  heforo  she 
presentcil  herself  to  jiay  for  or  o  "'  '  - 
While  the,  company  would  hi'  hound  to 
furnish  other  persons  with  such  aceoni- 
niodations  as  loiij?  as  they  reasonably 
c.iuld  upon  demand,  and  tliis  wiM  a  duty 
owing  to  the  public,  it  h»d  the  riRht,  and 
it  was  not  in  detriment  of  the  rights  ot 
the  public,  to  luuku  the  coutruct  with 

358 


J)laintilf.  'I'Ik;  <'ontra<'t  was  not  against 
pulilie.  policy.  If  other  persons  apphcil 
for  berths,  and  there  was  not  sullliient 
room,  ;t  would  not  be  thi!  duty  of  the  de- 
fendant to  bre.vk  its  contract  with  plain- 
tiff  to  accommodate  thi'm.  It  it  oweil 
duties  to  such  pi'i'sons,  ttu'y  would  de- 
pend npon  otlKT  considerations,  and  not 
upon  the  right  to  violate  the  express 
contract  W't'i  iil.iintilf.  It  owed  the 
same  duties  to  plaintilf  as  to  other  ]ier- 
sons,  ami  had  the  right  to  conlract  to 
perform  them.  It  violated  its  contractual 
obligation  to  plaintltf  if  it  sold  the  lii'rths 
reserved  for  plaintiti  toother  persons." 


CH.  XVII.]  LIABILITY  DURING  TRANSIT. 


§251 


contract   is  no    more   performed    by  furnishing    him 
with     a     seat     without    transportation     than     with 
transportation  without  a  soat.^       The  passenger  need 
not    pay    his    fare,    nor    (as    it    is    the    evidence    of 
the     contract    Avhicli    entitles    him    to    one)    surren- 
der his  ticliet  until  he  is  given  a  seat;-  and  he  is  not 
obliged  to  search  for  one;  the  carrier's  duty  is  to  pro- 
vide him  with  it.^     If  he  cannot  find  a  seat  in  the  car 
of  the  chiss  of  which  he  is,  it  is  the  passenger's  right  to 
enter  (without  using  force)  a  car  in  which  otheiwisc  he 
would  have  no  right  to  be,  as  for  exan)»j)le,  a  parlor 
car,*  or  a  car  set  apart  for  women,'  and  remain  ther<^ 
until  he  is  provided  with  the  seat  which  he  is  en- 
titled to.     But  he  cannot  ride  free,  because  there  is 
no  seat  for  l)im;  if  he  choses  to  ride  without  one  he 
must  pay  liis  fare;  if  unwilling  to  do  so,  his  remedy  is 
to  leave  tlie  train  at  the  first  stopp'ng  place  and  sue 
the  carrier  for  the  breach  of  contract."       As  he  may 
hiwfully  be  ejected  if  he  refuses  to  leave  the  train  or 
surrender  liis  ticket  it  would  hardly  be  a  waiver  of  his 
I'ight  to  sue,  for  him  to  remain  on  the  train  and  pay 
his  fare.^       The  carrier  is  liable  for  injuries  resulting 
from  his  failure  in  this  resi)ect,  as  where  the  passenger 
is  injured  while  juissing  1o  another  car  to  find  a  sci't.** 


1  Mt'inphii!  etc.  U.  Co.  v.  Benson,  H!> 
'I'ciin.  U27 ;  4  Am.  St.  Hep.  77r> ;  4  S.  \V.  Hup. 
B;  liass  v.  U.  Co., .HO  Wis.  450;  17  Am.  Rep. 
iri;  .H9  Wis.  6:tB;42  Wis.  6.-)4;  24  Am.  Hep. 
437;  Thorpe  t;.  11.  Co.,  %  N.  V.  404;  .H2 
Am.  Ifep.  .S25.  Ari  to  <',;irri<,'rs  Ijy  water, 
sec  n«rlou  v.  West  Jersey  Ferry  Co.,  114 
V.  S.  174;r>S.  ('.  l(,ep.960. 

2  Memphis  etr'.  II,  Co.  r.  IJeiison,  supra; 
Diivis  t'.  K.  Co.,r);<  .Mo.  .H17;  14  .\m.  Uep. 
467;  narclenherKh  r.  \l.  C'o.,.W  Minn.  3;  12 
Am.  St.  Itcp.  (ilo;  .-(8  N.  W.  Uep.  625. 

3  Willis  t'.  It.  Co.,  .■!2  \Uivh.  H'X);Hi  X.  Y. 
fi70;  Thorpe  i\  It.  Co.,  suprit.  "If  pas- 
(ienRcrs  appropriate  more  than  one  scat 
each,  leavinff  others  without  scats,  it  is 
not  the  duty  or  the  right  of  the  latter  to 


wranjflo  or  stnit^filo  with  the  former  for 
seats;  it  is  the  duty  of  th(^  proper  otilccvs 
of  the  train  to  regulate  that."  IJass  v. 
It.  Co.,  gtipra. 

4  Thorpe  v.  U.  Co.,  supr  /. 

'■'  Ttass  V.  U.  Co.,  8'  prii, 

fi  Memphis  etc.  H.  Co.  r.  Renson,  mipra; 
Davis  f.  U.  Co.,  snprn,  and  the  carrier 
cannot  eject  him  sIkmI  of  that;  Jlar- 
dciibersh  v.  It.  Co.,  mijirti. 

1  St.  I.oiiis  etc.  It.  Co.  i:  Leigh,  ir>  Ark. 
.■HW;5.'>  Am.  Kf]>.  5.")8. 

8  Camden  etc.  It.  Co.  r.  Iloosey,  09  Pa. 
St.  4!C;  Slclntyre  v.  U.  Co.,  S7  N.  Y.  274; 
Costikyan  r.  It.  Co.,  58  Hun.  5!K);  12  N. 
Y.  8.  r>8H;  '  .  wire  v.  It.  Co.,  148 Mass.  84('.; 
19  N.  K.  Uep.  ,V.'.S. 

M59 


§253 


LIABILITY  DUPaifG  TRANSIT. 


[part  III. 


He  may  assume,  when  he  is  allowed  to  enter  a  tra«in, 
that  the  carrier  has  provided  sufficient  seats,*  yet  if  ho 
knows  when  he  enters  the  train  that  there  is  no  room, 
he  cannot  complain  if  he  is  required  to  go  temporarily 
into  the  smoking-  car  where  seats  are  to  be  had.- 


^ 

'J 

:■.■'-» 


■■:;l 


r '" 

-«''■■  «^t 

........... 


§  252.  And  Means  of  Refreshment. — In  convey- 
ing passengers  on  long  journeys,  a  carrier  is  re(juired, 
by  humanity  as  well  as  by  law,  to  provide  his  passen- 
gers with  easy  modes,  and  to  allow  them  reasonable 
time  for  the  purpose  of  sustaining  life  by  means  of 
food  and  necessary  refreshments."^  lie  must  provide 
safe  passage  vrny  to  and  from  his  cars  to  the  eating 
houses,*  and  it  matters  not  whether  they  are  under  con- 
trol of  the  carrier  or  of  third  persons."  He  must  give 
information  as  to  the  time  of  stopping  at  such  places, 
as  well  as  reasonable  notice  before  the  train  stops," 
and  must  warn  the  passengers  when  the  time  has  ex- 
pired.^ 

§  253.     Must  Carry  Passenger  to  Destination.— 

It  is  a  breach  of  the  contract  of  carriage  to  carry  a  pas- 
senger beyond  his  destination,*^  and  he  is  entitled  to 
have  notice  of  the  fact  that  the  station  at  whi<'h  he 
desires  to  alight  has  been   reached;''  and  when  the 


1  IlardenbnrB  v,  I{.  Co.,  mpra. 

2  Memphis  etc.  11.  Co.  v.  Hcnson.jupra. 

3  Penistonr.  11.  Co.,  34  La.  Auii.  777; 
44  Am.  Uop.  444. 

4.Icfrersonville  etc.  H.  Co.  r.  Riley,  ,S!) 
Iml.  581!;  State  v.  K.  Co.,  fiH  Me.  17fi;  4 
Am.  Hop.  258;  Urebrik  r.  Oarr,  29  Fed. 
Hep.  29c  :  Clussiiian  v.  U.  ('o., ;)  Hun.  ilH ; 
73  N.  Y.  606;  Mitehell  v.  U.  Co.  30  (ia. 
22;  JJodRet'.  Uostou  S.  S.  Co.,  148  Mass. 
4(i3;  li»  N.  K.  Rep.  37S;  Ukiii  v.  R.  Co., 
15  ( )rcg.  220. 

s  See    post;    I'eniston     t\    U.    Co., 
supra. 

«  Ray,  Pass,  Carr.  156. 

360 


7  stater.  R.  Co.,  88  Me.  I7f>;  4  Ain.Ui'ii. 
25S:  Mitehell  r.  R.  Co.,;tn  tia.  22;  I'enis- 
ton V.  R.  Co.,  ,34  La.  Ann.  777;  44  Am. 
Rep.  444. 

«  New  ilrleans  etc.  R.  Co.  v.  Hnrst,  HC, 
Miss.  66(1;  74  .\ni.  Dee.  'hH;  Sunday  r. 
Gordon,  1  Rlatchf.  &  II.  fiii'.i;  I'jtts.  etc. 
R.  (.'o.  r.  Nuzum,  60  Ind.  141 ;  19.\ni.  Rep. 
703;  Mobile  etc.  R.  Co.  v.  Mc.Vrthiir,  43 
Miss.  IW);  Memphis  etc.  R.  Co.  v.  Whit- 
field, 44  Miss.  460;  7  Am.  Rep. 6;i0, Thomp- 
son V.  R.  Co.,  50  Miss,  315;  19  Ar.i.  Rep,  12. 

9  Southern  R.  Co,  v.  Kendri('k,  40  Miss. 
374;  Imholf  f.  R.  Co.,  20  Wis.  ,344;  Keller 
r,  R.  Co.,2  Abb.  App,  480;  17  Uow,  I'r. 


CII.  XVII.]  LIABILITY  DTJKINO  TRANSIT. 


§253 


name  of  a  station  is  called,  a  passenger  may  presume 
that  the  next  stop  is  at  that  station.^  So,  where  the 
passenger  is  notified  that  he  is  at  his  stopping  place 
when  he  is  not,  and  he  alights,  the  carrier  is  liable  for 
injury  to  him  resulting  thereby."  When  a  train  has 
come  to  a  full  stop  to  enable  passengers  to  alight,  and, 
without  notice  it  is  suddenly  moved,  causing  injury  to 
those  alighting,  it  is  negligence,  whether  the  motion 
is  in  a  backward  or  forward  direction.^  But  there  is 
no  duty  upon  the  conductor  of  a  train  to  make  per- 
sonal inquiries  of  the  passengers  as  to  whether  they 
desire  to  leave  the  cars  at  the  station;*  nor  is  he  bound 
to  wake  up  passengers  who  have  fallen  asleep.^  The 
carrier  must,  however,  stop  the  vehicle  long  enough 
to  give  all  passengers  intending  to  alight,  a  reasonable 
opportunity  to  do  so,"  and  to  remove  their  personal 
baggage  *ind  belongings.' 

It  is  said  in  Iowa,  Mississippi  and  South  Carolina 
that  where  a  railroad  has  provided  a  proper  place  and 
means  for  alighting  from  a  car,  and  has  stopped  the 
train  a  reasonable  length  of  time,  it  is  not  obliged  to 
render  passengers  personal  assistance,  and  that  where 


102;  Dickens  r.  R.  Co.,  1  Abb.  App.  604; 
2815!irb.  41;  Now  Orlciiiis  etc.  U.  Co.  v. 
Statham,  42Miss.  607;  97  Am.  Ueo.  478; 
IjOuisviUe  etc.  R.  Co.  v.  Mask,  fi4  Miss. 
7.'i8;  2  South  llep.  360;  Dorrah  v.  II.  Co., 
65  Misis.  14;  7  Am  St.  Rep.  629;  3  South. 
Rep.  36. 

1  Central  R.  Co.  v.  Von  Horn,  38  N.  J. 
L.  IH.t. 

2  I'enn.  Co.  v.  noagland,  78  Ind,  203; 
Falk  f.  U.  Co.,  29  Atl.  Rep.  158  (N.  J.). 

3  Millinian  t'.  R.  Co.,  6  Th.  &  C.  585  ;  66 
N,Y.  642;  aliter  in  the  case  of  freight 
trains  lltmmingway  r.  R.  Co.,  67  Wis. 
678;  31  N".  \V.  Rep.  268. 

*  Hurt  V.  R.  Co.,  94  Mo.  255;  4  .m.  St. 
Rep.  374;  7  S.  W.  Eep.  1;  Penn.  R.  Co.  v. 
Kilgore,  32  I'a.  St.  294. 

«  Texas  etc.  R.  Co.  v.  Alexander,  30  S. 
W.  Rep.  1113  (Tex.).  Even  though  he  has 


promised  them  to  do  so.  INIunn  v.  R.  Co., 
71  «;a.  710;  51  Am.  Rep.  284;  Sevier  ».  R. 
Co.,  61  Miss.  8;  48  Am.  Rep.  74. 

fl  Curtis  V.  R.  Co.,  23  Wis.  152;  27  Wis. 
158 ;  South,  etc.  R.  Co.  v.  Kendrick,  40 
Miss,  374;  Dickens  r.  U.  <'o.,  1  Al)b.  App. 
604;  Fairmount  etc.  11.  Co.  v.  Stutler,  54 
Pa.  St.  .H7.i;  93  Am.  Dec.  714;  Roberts  f. 
Johnson,  5S  N.  Y.  fi!:«;  5  Jones  &  S.  157; 
Houston  etc.  R.  Co.  v.  G()rl)ett,  49  Tex. 
673;  Mulhado  v.  R.  Co.,  ,30  N.  Y.  370;  Jef- 
fersonville  etc.  U.  Co.  v.  Parmaleo,  51 
Ind.  42;  Toledo  etc.  R.  Co.  v.  Raddeley, 
64  111.  19;  6  Am.  Rep.  71;  Louisville  etc. 
R.  Co.  V.  Mask,  f.4  Miss.  738;  2  South  Rep. 
360.  So  as  in  case  ot  street  cirs ;  Crissey  v. 
R.  Co.,  73  Pa.  St.  83;  Poulin  i>.  R.  Co.,  64 
N.  Y.  621. 

7  Hurt  v.  R.  R.  Co.,  stipra. 

361 


§254 


LIABILITY  DURING  TRANSIT.  [PART  III. 


Ci ..  •■<• 
.,..-■* 

.««»>*■' 

...i.:J 
-^  .•■'■J 

Z ' 


.i*" 


•.:i 


r " 


Vn.'  ■■'■ 


it  is  done — as  in  case  of  females  or  sick  passengers — 
it  is  an  act  of  courtesy  on  the  part  of  the  servants  of 
the  carrier,  and  not  a  right* 

Where  passengers  are  ptrmitted  to  alight  at  a  way 
station  or  other  stopping  place,  or  where  the  vehicle 
stops  for  any  reason,  the  servants  of  the  carrier  must 
notify  them  that  the  vehicle  is  about  to  start  aad  the 
journey  to  be  resumed.  But  they  are  not  bound  or 
required  to  go  after  those  who  have  gone  away,  and 
out  of  sight  and  out  of  reach  of  the  voice,  unless  there 
be  some  customary  signal  as  b;  blowing  a  whistle, 
or  ringing  a  bell,  in  which  ca^j  such  signal  must 
be  given."  So,  where  a  train  stops  between  stations, 
and  the  passengers  leave  the  train  without  objection 
from  the  conductor,  it  is  negligence  to  start  the  train 
without  first  giving  the  passengers  timely  warning  to 
return.^ 

§  254.     Must  Enable  him  to  Land  Safely.  —  In 

cases  of  injuries  to  passengers  on  account  of  the  stop- 
ping of  the  trains  in  such  a  way  as  to  lead  passengers 
to  suppose  that  they  are  invited  to  alight,  while  in 
reality  the  train  has  not  reached  the  platform,  or  has 
overshot  it,  and  the  pasenger  is  injured  in  alighting  at 
a  dangerous  place,^  the  law  is  that  (a)  there  must  be 
evidence  sufficient  to  induce  a  reasonable  man  to  be- 
lieve that  the  train  is  actually  at  the  alighting  plat- 
form, and  that  the  passengers  are  invited  to  alight, 
and  (b)  there  must  be  the  exercise  of  such  care  upon 
the  part  of  the  passenger  as  to  free  him  from  the  charge* 


1  naben  v.  K.  Co.,  34  N,  W.  Rop.  621 ;  73 
la.  579;  6  Am.  .St.  Hop.  708;  New  Orleans 
etc.  11. Co.  V.  .Stalhani,  42  Miss.  r,(i7 ;  .07  .\m. 
I>ec.  478;  Simiiis  v.  R.  Co.,  3  .S.  E.  Hep. 
.SOI.  IJnt  see  Jeffersonvillc  etc.  U.  Co.  v, 
llcndrick's  Adm'r,  "20  Ind.  228;  41  Ind.  4'.). 

362 


2  State  V.  n.  Co.,  68  Me.  176;  4  Am.  Kcp. 
IT)  9 

3  (Jiilf  etc.   U.  Co.  V.  Uounutroe,  2,")  S. 
\V.  Itep.  987  (Tex.) 

4  Terre  Haute  etc.  It.  Co.  f.  Buck,  96 
Ind.  346;  49  Am.  Uep.  168. 


en.  XVII.]  LIABILITY  DURING  TRANSIT. 


§254 


that  his  own  contributory   nogligence  was  the  real 
cause  of  the  injury.^ 

(a)  The  mere  calling  out  of  the  name  of  the  station 
would  not  of  itself  entitle  a  passenger  to  alight  if  there 
were  other  circumstances  which  led  him  to  believe 
that  the  car  was  not  at  the  platform.-  On  the  other 
hand,  calling  out  the  name  and  then  stopping  the  ve- 
hicle generally  would.^  And  the  absence  of  all  proof 
that  the  name  of  the  station  had  been  announced 
would  not  free  a  railroad  from  liability,  if  there  had 
been  other  indications  of  an  invitation  to  the  passen- 
gers to  leave  the  cars,  as  for  instance,  the  opening  of 
the  doors  or  the  like.*  The  question  must  be  one  of 
fact  for  tie  jury  .^ 

(b)  Where  the  conduct  of  the  passenger  in  alight- 
ing is  contrary  to  the  dictates  of  common  prudence, 
the  liability  for  the  injury  he  receives  cannot  be 
shifted  to  the  carrier.  This  is  generally  very  clear 
wliere  the  passenger,  seeing  that  he  is  being  carried 
beyond  his  destination,  leaps  from  a  train  m  rapid 
motion.**  Rut  in  the  cases  we  are  considering  here,  the 
danger  to  the  passenger  is  not  so  patent — nevertheless 
his  lack  of  care  may  be  evident.  Thus,  in  an  English 
case,  the  car  was  carried  beyond  the  station,  and 
stoi)ped  upon  an  embankment  above  a  roadway.  Tlie 
night  was  dark,  and  there  was  no  light  in  the  carriage, 
nor  on  the  platform;  nor  was  there  any  fence  on  the 
toj)  of  the  embankment,  between  it  and  the  roadway 


1  Hrowr.c  Carr.,  §  486. 

2  IJrovvne Ciirr.,  §  457 ; Lewis i'.  U.  Co.,  L. 
U.  9  Q.  B.  ()G ;  Penn.  C!o.  r.  Aspell, 2H  I'n.  St. 
147;  62  Am.  Pec.  :i'2.S;  Mitcholl  f.  R.  Co., 
5lMich.  2,S6;47  Am.  Ucp.  566;  16  N.  W. 
Hep.  388 ;  Frost  v.  K.  Co.,  10  Allen  .S87 ;  87 
Am.  Dec.  668. 

3  nhilges  t».  U.  Co.,  L.  R.  7  U.  L.  21.S; 
Wellor  V.  R.  Co.,  L.  R.  9  Com.  P.  126 ;  Ta- 
ber  V.  K.  Co.  71  N.  Y.  480;  Central  B.  Co. 


r.  Van  Horn,  38  N.  J.  I,.  IM;  Colnmbns 
etc.  R.  Co.  f.  Karrell,  ,S1  Ind.  408;  Mem- 
phis etc.  R.  Co.  f.  Striugfellow,  44  Ark. 
321;  51  Am.  Rep.  598. 

4  Praeger  v.  R.  Co.,  24  I..  T.  (N.  S.)  106; 
24  L.  J.  (X.  S.)  10.5;  Cockle  v.  R.  Co.,  L. 
R.  7  C.  P,  323 ;  St.  Louis  etc.  R.  Co.  v.  Cant- 
rell,  37  Ark.  519 ;  40  Am.  Rep.  106, 

5  Hrowuo  Carr.,  §  488. 

6  See  poit,  §  308. 

363 


.4f  ^ 


§255 


LIABILITY  DURING  TRANSIT. 


[part  III. 


-■3 


...    .»!• 

..■  ■  ■" 


underneatli.  The  plaintiff  was  aware  that  his  car  had 
overshot  the  platform,  and,  without  waiting  to  see 
whether  it  would  be  backed  up  to  the  platform,  got 
out  in  the  dark,  missed  his  footing,  and  fell  fonvard 
over  the  embankment.  The  carrier  was  held  not  lia- 
ble.' If  a  passenger  is  injured  by  knowingly  alight- 
ing at  a  place  where  there  is  no  platform,  Avheu,  by 
passing  to  a  forward  car  he  could  alight  with  safety 
on  the  platform,  he  is  guilty  of  negligence,  and  cannot 
recover.^ 

§  255.  Power  of  Carrier  to  Establish  Regula- 
tions.—  The  right  of  a  carrier  to  make  regulations 
within  the  limits  of  his  charter,^  for  the  management 
of  his  business  and  for  the  safety  and  convenience  of 
the  public,  is  acknowledged,  provided  thej'  are  lawful 
and  reasonable.^  The  reasonableness  of  a  particular 
regulation  has  been  said  by  some  courts  to  be  a  ques- 
tion of  law;^  by  others  to  be  a  question  of  fact;'  bui 
the  weight  of  authority  is  to  the  effect  that  it  is  a  mixed 
question  of  law  and  fact"     As  examples  of  unreasou- 


1  nnrold  V.  R.  Co.  14  T..  T.  (X.  S.)  440; 
Lewis  V.  U.  Co.,  I..  U  .  9  Q.  U.  W>,  and  see 
Frost  r.  R.  Co.  in  Allen,  387;  Mitchell  v. 
R.  Co.  51  Mich.  236 ;  47  Am.  Rep.  566 ;  16  N. 
W.  Rep.  388. 

2  Kckerd  f.  R.  Co.,  70  la.  .353.  But  see 
CartwriRht  t>.  R.  Co.,  62  Mich.  606;  60  Am. 
Bep.  274 ;  18  N.  \V.  Rep.  380. 

3  A  regulation  inconsistent  with  Its 
charter  provisions  is  invalid.  Chicago 
etc.  R.  Co.  V.  I'eople,  56  111.  .365. 

4  Day  t'.  Owen,  5  Mich.  520 ;  72  Am.  Dec. 
62;  ])n  Lanrens  v.  R.  Co.,  15  Minn.  49;  2 
Am.  Rep.  102;  Gleasonr.  Goodrich  Trans. 
Co.,  32  Wis.  85;  Chicapo  etc.  R.  Co.  t». 
Williams, 55  111.  185;  I'ennCo.  f.  Langdon, 
92  Pa.  St.  21 ;  Houston  etc.  R.  Co.  v.  Moore, 
49  Tex.  31 ;  State  r.  Overton,  post. 

5  Hom)auer  r.  R.  Co.,  52  la.  342;  Hib- 
bard  v.  R.  Co.,  16  N.  Y.  456;  Vedder  r. 
Fellows,  20  N.  Y.  126,  the  court  saying: 

364 


"There  arc  strong  reasons  whv  the  rea- 
sonableness of  railroad  re),'iih>tious 
should,  in  the  absence  of  !i.iy  positive 
proof  as  to  their  effect,  be  snhinitted  to 
the  court  as  a  question  of  law,  rather 
than  to  the  jury  as  one  of  fact.  Ordina- 
rily, jurors  are  not  aware,  nor  can  tliey 
readily  he  made  aware,  of  all  the  reasons 
calling  for  the  rule.  They  are  apt  to 
listen  to  any  allegations  of  injuries  on 
railways.  What  one  jury  niipht  deem 
an  inconvenient  rule,  another  niipht  ap- 
prove as  judicious  and  proper.  There 
wonld  be  no  uniformity."  State  v.  Over- 
ton, 24  N.  ,J.  L.  4.S5;  61  Am.  Dec.  671; 
State  f.Chovin,  7  la.  204. 

fl  Thonip.  Carr.  Pass.,  3.35;  1  Rtdf.  Ky. 
95.  Bass  r.  R.  Co.,. 36  Wis.  45i);  Mrowu  r. 
R.  Co.,  4  l-\>d.  Rep.  37;  7  Fed.  Kep.  51.  Jn 
Day  V.  Owen,  5  Mich.  520,  72  Am.  Dee.  02, 
it  is  said:    "The   reasonableness  of  a 


CII.  XVII.]  LIABILITY  DURING  TRANSIT. 


§256 


able  regulations,  may  be  mentioned  a  rule  forbidding 
conversation  among  passengers,  or  prohibiting  them 
from  changing  their  seats,^  or  from  wearing  a  certain 
dress,  or  a  certain  cap  or  badge,-  or  that  the  amount 
of  fare  paid  should  be  the  measure  of  recovery  for  the 
violation  of  the  contract  of  carriage.^ 

The  regulations  of  the  carrier  generally  have  refer- 
ence to  the  purchase,  production  or  surrender  of  tick- 
ets, the  use  of  the  carrier's  premises,  the  classification 
of  passengers,  and  the  vehicles  in  which  they  may  ride, 
and  the  conduct  of  the  passenger. 

In  a  recent  case  in  Texas,  regulations  of  the  carrier 
restricting  passengers  to  the  use  of  one  seat  if  the 
cars  were  not  crowded,  and  to  half  a  seat  if  they  were 
crowded,  and  not  allowing  the  backs  of  seats  to  be 
turned  so  as  to  make  two  seats  face  each  other,  and 
not  allowing  passengers  to  place  baggage  on  the  seats 
in  front  of  them,  were  considered  reasonable.* 

§  256.  Passenger  may  be  Ejected  for  Violation 
of  Regulations. — For  the  failure  to  observe  the 
proper  and  reasonable  regulations  of  the  carrier,  the 
peualt}'  is  ejection  or  exclusion  from  the  carrier's  ve- 
hicles or  premises.  The  violated  regulation  may  be  a 
police  regulation,^  or  a  regulation  concerning  the 
ticket  or  payment  of  fare.  It  is  generally  held  that 
after  the  train  has  been  stopped  to  eject  the  passenger, 
he  cannot  save  himself  by  tendering  the  proper  fare  or 


mic  or  rppnlntinn  is  a  mixed  question  of 
law  unci  fact  to  b<!  found  by  the  jury  on 
the  trial,  under  the  instructions  of  the 
ronrt.  It  may  depend  on  a  j?reat  variety 
of  circumstances,  and  may  not  improp- 
erly he  said  to  be  in  itself  a  fact  to  be  de- 
duced from  other  facts.  It  is  not  to  be 
infeiTcd  from  the  rule  or  reprulation  it- 
self, but  must  be  shown  positively." 


1  State  V.  Overton,  24  N.  J.  (L.)  436 
Ogden  J. 

2  South  Fla.  K.  Co.  v.  Rhodes,  25  Fla. 
40;  5  South.  Rep.  633. 

;t  Galveston  etc.  U.  Co.  v.  Kinnebrew, 
27  S.  K.  Rep.  631  (Tex.). 

*  Gulf,  etc.  R.  Co.  V.  Moody,  30  S.  W. 
Rep.  B74  (1895). 

6  See  §  26". 

365 


§256 


LIABILITY  DUEING  TRANSIT. 


[part  III. 


■•■' ;.; 
-«ir.,..., 
(•■J  ■■"1 


r 

<••'  ■  ,■... 


ticket,^  on  the  ground  that  to  allow  a  passenger  to  test 
the  carrier's  regulations  and  the  conductor's  firmness 
by  refusing  to  pay,  or  produce  a  ticket,  and  still  save 
himself  from  expulsion  by  tendering  the  proper  fare 
after  expulsion  had  commenced,  would  be  an  intoler- 
able annoyance  both  to  the  carrier  and  to  his  other 
passengers.^  But  it  is  clear  that  the  passenger  may 
rightly  change  his  mind  before  the  expulsion  has  com- 
menced,^ or  his  fare  may  be  paid  for  him  by  another.* 
A  person  who  has  been  rightfully  ejected  from  a 
railroad  car  cannot  claim  to  be  readmitted  to  the 
train.^  This,  for  two  reasons,  1st:  The  right  to  refuse 
to  transport  him  farther,  and  to  eject  him  from  the 
train,  would  be  an  idle  and  useless  exercise  of  legal 
authority  if  the  party  who  had  hitherto  refused  to  per- 
form the  contract  by  paying  his  fare  when  duly  de- 
manded, could  immediately  re-enter  the  cars  and 
claim  the  fulfillment  of  the  original  contract  by 
the  carrier.^  2nd:  If  one  passenger  might,  by 
his  unjustifiable  humor  cause  the  cars  to  stop, 
another  might  do  the  same  thing,  and  thus  the 
utmost  irregularity  in  the  running  of  the  train 
might  be  produced,  jeopardizing  the  safety  of  the 
company's  property  and  the  lives  of  all  on  board.'' 
Some  cases  limit  this  right  to  the  stoppage  of  the 
train  ac  some  place  not  a  regular  stopping  place,  and 
hold  that  if  a  passenger  is  ejected  at  a  regular  station 
he  may,  on  tendering  his  fare,  or  a  proper  ticket,  re- 


1  People  V.  Jillson,  3  Park.  C.  C.  234; 
Hibbiird  v.  U.  Co.,  15  N.  Y.  455;  8tont!  v. 
U.  Co.  47  la.  52;  29  Am.  Hep.  459;  Pf-ise 
tt.  H  .  Co.,  101  N.  Y.  307;  P4  Am.  H.  p.  699; 
5  N.  K.  Hep.  37;  Clark  v.  R  'o.,  91  N.  C. 
606;  49  Am.  Rep.  647. 

2  Hoffbauerv.  R.  Co.,  62  la.  342;  35  Am. 
Rep.  278;  3  N.  W.Rep.  121. 

3  Gonld  i>.  R.  Co.,  18  Fed.  Rep.  155; 
Texas  etc.  E.  Co.  v.  Bond,  62  Tex.  442;  60 
Am.  Rep.  632. 

366 


4  Ix)uisville  etc.  R.  Co.  v.  Gar.:ett,  8 
I,ea  4.38;  41  Am.  Rep.  640. 

6  State  V.  Campbell,  32  N.  J.  (L.)  ,369; 
Pease  v.  R.  Co.,  11  Daly,  .350;  O'lirien  v. 
n.  Co.,  15  Gray,  20;  77  Am.  Dec.  347; 
Stone  r.  R.  Co.,  47  Iowa,  82;  29  Am.  Hep. 
468;  Hoffbauor  i'.  R.  Co.  52  la.  279;  35 
Am.  Rep.  278 ;  3  N.  W.  Rep.  121. 

6  O'Brien  v.  R.  Co.,  supra. 

1  Thomp.  Carr.  Pass.  29. 


iHltf 


CH.  XVII.]  LIABILITY  DURING  TRANSIT. 


§257 


sume  his  journey.*  But  it  is  said  in  one  case,  that  he 
must  tender  fare  or  a  ticket  from  the  station  where 
he  originally  boarded  the  train.'-^  And  the  carrier  has 
no  right,  because  of  a  previous  breach  of  its  rules,  or 
because  the  person  is  its  debtor  for  a  previous  ride, 
to  refuse  to  carry  him.^ 

§  257.  Mode  and  Place  of  Ejection. — The  ejec- 
tion must  be  made  in  a  proper  manner.  The  carrier 
will  be  liable  if  his  servants  make  the  expulsion  from 
a  moving  vehicle,*  or  use  more  force  than  is  necessary 
for  the  purpose.'^ 

The  carrier  is  not  obliged  to  wait  until  his  vehicle 
reaches  a  station  or  usual  stopping  place,  but  he  may 
eject  the  person  at  any  place,  unless  it  be  an  unsafe 
place,  or  one  where  he  would  be  obviously  exposed  to 
danger."     Statutes  are  in  force  in  England  and  in  some 


1  OBripn  V.  R.  Co.,  IB  Gray,  20;  Nelson 
V.  d.  To.,  7  llGii.  140 ;  f)'Hiien  v.  K.  Co.,  HO 
N.  y.  236;  South  Car.  It.  Co,  r.  Nix,  68  Ua. 
B'i2, 

2  Stone  V.  B.  Co.,  47  la.  82 ;  29  Am.  Rep. 
468. 

3  State  I'.  R.  Co.,  48  N.  J.  55;  57  Am. 
Rep.  fi4.1. 

4  .Stater.  Kinney,  34  Minn. 311;  Ilolmes 
V.  Wiikelleld,  12  Allen,  580 ;  Carter  v.  B. 
Co.,98Iu(l.  5,'52;49  Am.  Rep.  780;  Sanford 
f.  R.  Co.,  23  N.  Y.  34:!;  80  Am.  Dec.  286; 
Law  r.  U.  Co.,  .S2  la.  234 ;  Penn.  R.  -Co.  v. 
Vandivcr,  42  Pa.  St.  305;  aliter  if  it  is 
TOoviup  so  slowly  as  not  to  make  descent 
dunKerons.  Ilealy  v.  U.  Co.,  28  Ohio  St. 
23;Miiriihy  r.  K.Co.,  118  M.iss.  228;  Kline 
r.  ]{.  ('!>.,  .^7  Cal.  400.  Witliont  iicHial 
force  used,  the  employment  ol  a  show  of 
force  compellingr  him  to  jump  from  a 
moving  car  is  ilk'Kal.  Kline  v.  R.  Co., 
89  Cal.  400;  99  Am.  Dec.  292. 

fi  State  V.  Ross,  26  N.  .1.  L.  224 ;  Mnrphy 
V.  R.  Co.,  118  Blass.  228;  Seymour  v. 
Greenwood.  7  Iturl.  &  S.  3,i5;  6  Hnrl.  & 
N.  .359;  Railroad  Co.  v.  Valleley,  32  Ohio 
St.  .345;  ,30  Am.  Rep.  fiOl ;  Passen!,'er  R. 
Co.  r.  Yonnj;,  21  Ohio  St.  518 ;  8  Am.  Rep. 
78;  Ranisden  r.  U.  Co.,  104  Mass.  117;  6 


Am.  Rep.  200;  Peck  r.  R.  Co.,  70  N.  V. 
.587;  Rounds  c.  R.  Co..  64  N.  Y,  129;  21 
Am.  Rep.  697;  Coleman  v.  R.  Co.,  106 
Mass.  160;  IliRgins  r.  R.  Co.,  46  N.  T.  23; 
7  Am.  Rep.  293;  Phila.  etc.  R.  Co.  v.  Uir- 
kin,  47Md.  155;  28  Am.  I^i,.  442;  Penn. 
R.  Co.  r.  Vandiver,  42  Pa.  St.  ,366;  82  Am. 
Dec.  520;  Illinois  Cent.  R.  Co.  v.  Whittc- 
more,  43  111.  420;  92  Am.  Dec.  1,38;  Louis- 
ville etc.  R.  Co.  r.  Whitman,  79  Ala.  .328. 
6  McClnre  v.  R.  Co.,  34  Md.  5,32;  6  Am. 
Rep.  .345;  Great  West  R.  Co.  v.  Miller,  l!i 
Jlich.  .305;  JefFcrsonville  etc.  B.  Co.  v. 
RoRcrs,  28  Ind.  1 ;  92  Am.  Dec.  276;  Ever- 
ett t'.  R.  Co.,  69  Iowa,  15;  58  Am.  Rep. 
207;  28  N.  W.  Rep.  410;  Wyman  v.  R.  Co., 
34  Minn.  210;  25  N.  W.  Rep.  349.  Con- 
tra, Maples  r.  R.  Co.,  38  Conn.  557;  9  Am. 
Hep.  434,  holdinK  that  it  must  be  at  a 
station.  In  Kentucky  a  conductor  ex- 
pelled a  drunken  passenger  at  a  place 
not  a  station  and  in  the  snow  with  the 
result  that  he  was  badly  frozen.  The 
railroad  was  held  lialile.  Louisville  etc. 
B.  Co.  V.  Sullivan,  81  Ky.  024;  60  Am. 
Rep.  18G.  In  a  remarkable  case,  a  pas- 
senger who  had  by  mistake  boarded  the 
wrong  train  at  night  was  ejected  at  a 
dangerous  place  at  night  among  nnmer- 

367 


§258 


LIABILITY  DURING  TRANSIT.  [PART  III. 


•»y  C 


c 

,7 

..».r-*» 

^'« 

-u»f 

.„., 

*"•« 

c 

.••• 

tilt 

.**'{ 

•  <l« 

■•••' 

^r. 

("^■t 

•1 

,/ 

:' 

C' 

■J 

!•••    * 

,::1 

r'- 


JJ-^K 


r- ;; 

::;x-; 
:';:t 


of  the  States,  providing  that  persons  refusing  to  pay 
fare  may  be  ejected  at  a  usual  stoi>piiig  place  or 
near  a  dwelling  house,'  and  it  is  held  that  these 
prohibit  the  ejection  of  a  passenger  at  any  other  idace;^ 
that  they  do  not  cover  a  case  of  refusing  to  surrender 
a  ticket,  or  violating  any  other  of  tlu-  carrier's  i-cgn- 
lations,"*  nor  the  case  of  tresi)assers  or  persons  going 
upon  a  train  with  no  intention  of  paying  fare.^ 

§  2.58.     Passenffor's  Ripfht  to  Resist  Ejection. — 

Where  the  conductor  or  other  servants  of  the  carrier 
have  no  authority  to  expel  the  passenger,  or  attempt  to 
exp(d  him  in  an  improjx'r  manner,  or  at  an  improper 
l)lace,  he  has  a  right  to  resist  the  atteni])t,  and  resist- 
ance nuiy  be  lawfully  made  to  such  an  extent  as  may 
be  essential  to  maintain  this  right. •"'  Though  it  is  some- 
times said  by  individual  judges  that  it  is  better  for  tlu> 
passenger  to  quietl;>  accede  than  to  run  the  risk  of 
injury  at  the  hands  of  the  carrier's  servants,  these  re- 
marks are  rather  in  the  nature  of  good  natured  a<lvice 
than  statements  of  duty;  and  are  usually  found  in 
those  judgments  where  a  passenger  is  sueing  foi'  an 
ejection  brought  about  through  the  mistake  or  neglect 


oils  car  trjicks,  and  afterwards  struck  l)y 
a  train  anil  scvcn'ly  itijuri'ii.  lie  had 
lii'jt^ril  the  condiictor  to  tak(^  liiin  to  llii! 
ni'Xt  station  and  had  olTcrcct  to  j)a>  his 
fare.  The  Snin't'nii'  Court  allirnicd  a 
verdict  of  $4s,(iii((  apainsl  thi;  railroad, 
altliouf;li  tlie  trial  jiidKe.  in  charKinK"" 
the  suh.ject  of  exemplary  danniKCf^.  clnir- 
acterized  the  ejection  as \vron).'fiil,  wan- 
ton, inhuman,  and  wholly  tinjustitled: 
Lake  Shore  et('.  It.  Co.  r.  Kosenzweij:,  U.S 
I'a.  Pt.  nU';  6  Atl.  Hep.  545;  and  see  Hass 
r.   11.   Co.,  Hr.  Wis.  450. 

1  Terre  Haute  etc.  R.  Co.  r.  Vanatta,  21 
111.  IHS;  74  Am.  Dec.  !t6;  Illinois  Cent.  H. 
Co.  V.  Sutton,  42  111.  4.W  ;  92  Am.  Dec.  81 ; 
Chica;ro  etc.  11.  Co.  )•.  Flafrp,  4H  111.  .'!B4; 
02  Am.  Dec.  l.SH.  A  water  tank  is  not  a 
"usual  stoppinff  place."     Chicago   etc. 

368 


K.  Co.  V.  KlnRK,  4."!  Ill  .W4;  !t2  Am.  Dec.lM. 

2  Cliicaso  etc.  K.  Co.  v.  I'arks,  l.S  III, 
4(10;  Chieajroetc.  K.  Co.  r.  Ceacock,  4S 
111.  2,'(:t ;  Stephen  r.  Smith,  2'.t  Vt.  ll'.d ;  coji- 
trii,  Toleiloetc.  It.  Co.  v.  Wright,  fi8  Ind. 
riH'l;  M  Am.  Kep.  277. 

■I  111.  Cent.  It.  Co.  I-.  Whitteniore,4;)  III. 
420;  '.(2  Am.  Dec.  IHH;  South  Kla.  U.  Co., 
f.  Rhodes,  25  Kla.  40;   5  South.  Rep.  fi.S.S. 

4  I-illis  V.  It.  Co.,  04  Mo.  404;  27  Ara. 
Rej).  255;  Chicago  etc.  It.  Co.  i-.  Roger,  1 
Hra<l.  .\pp.  472.  But  see  Chicago  etc.  It. 
Co.  r.  I'eacock,  IS  111.253;  Chicago  etc. 
It.  Co.  r.  Roberts,  40  III.  503. 

«  Knglish  V.  R.  Co.,  f.O  N,  Y.  454;  23  Am. 
Rep.  <)!);  4  llun.  CRit;  Santord  r,  R.  Co., 28 
N.  V.  .'14.3;  80  Am.  Dee.  280;  Ilutfortl  i'.  It. 
Co.,  5.!  Mich.  US;  18  N.  W.  Rep.  580; 
lirowur.  it.  Co.,  7  Fed.  Uep.  52. 


CII.  XVII.]  LIABILITY  DUUING  TRANSIT. 


259 


of  some  other  servant  of  the  carrior.  Whore,  for  ex- 
amph',  the  pas^enj^er's  ticket  does  iiol  entitle  him  to 
the  passage  demandetl,  tlie  ticlcet  beiiij;-  coiulusive  be- 
tween e()ndnet(Ji'  and  paHsen<;er,  tlie  pas.senj;('i'  nuist 
not  resist,  for  the  conductor  is  in  tlie  ri<i,ht,'  and  lliouj;h 
the  carrier  has  broken  his  contriut,  yet  "no  one  has 
a  right  to  resort  to  force  for  the  ijerlci  inauce  of  a  con- 
tract made  with  another,'"-  l»ul  it  is  dilTcrent  where 
the  ejection  is  illegal,  for  the  pas^'^igev  her(»  is  merely 
resisting  an  unauthorized  assai.il  ujjon  his  |>ersou  or 
iiji  unjustifiable  invasion  of  his  rights^ 

In  ejecting  a  passenger  from  a  train,  the  servants 
of  the  carrier  have  no  right  to  place  the  baggage  of 
the  i)assenger  In  a  place  where  it  will  be  injured,  ami 
to  previ'ut  his  baggage  from  being  injured,  he  has 
the  right  to  use  such  force  as  is  necessary.^ 

§  259.  iVo  Kij^^lit  to  Imprison. — And  though  a 
carrier  may  eject,  he  cannot  imi)rison  or  detain  a  pas- 
senger until  he  ])r()duces  a  ticket  or  pays  his  fare,  for 
this  would  be  (Mjuivalent  to  imi)risonmeut  for  debt.'^ 

In  Li/iirli  V.  Mctropolilan  R.  To.,'  an  elevated  railroad 
company  collected  no  fare  or  tickets  at  the  receiving 
station,  or  on  the  train,  but  reciuired  passengers  to  drop 
their  tickets:  or  fare  into  a  box  at  the  door  of  the  sta- 
tion to  wlii(di  they  were  carried.  A  passenger,  having 
lost  his  ticket  on  the  route,  stated  the  fact  to  the  gate- 
keeper at  his  destination,  but  was  forbidden  by  him  to 
pa.ss  unless  he  produced  a  ticket  or  paid  his  fare.  lie 
insisted  on  passing,  and  the  gate-keeper  caused  his  ar- 


1  S<!e  Townsfnd  v.  n.  Co.,  56  N.  Y.  295; 
15  Am.  Rep. -lilt;  Murphy  v.  11.  Co.,  IIH 
Mass.  22H;  and  cases  citi-d  ante  §  244. 

a  Knglish  i:  U.  Co.,  m  N.  Y.  454;  23  Am. 
Kit-  '>". 

3  Jd.  ZaKclraeyer  v.  U.  Co.,  60  N.  W. 
Kcp.  4.^6  (Mich.). 

35 


*  Gnlf,  etc.  R.  Co.  v.  Moody,  30  S.  W 
Uep.  574  (Tex.) 

8  .Standish  v.  Stcamboiit  Co.,  Ill  Mass. 
512;  15  Am. Rep.  67;  Lynch  v.  K.  Co.,  90 
N.  Y.  77;  43  Am.  Rep.  141;  Chilton  v.  U. 
Co.,  16  M.  &  W.  212. 

6  90N.  Y.  ;77  Am.  Uep.  141. 

369 


(^259 


LIABILITV  DURING  TRANSIT. 


[part  III. 


CO 

^f  ■'Utf 


-er....,. 


r 

w<.,,„ 

'■"!■ 


rest  by  the  police.  The  company  had  or{lei-e<l  its  gate- 
keepers not  to  allow  passengers  to  go  out  unless  they 
surrendered  tickets  or  paid  fares.  It  was  held  that  the 
company  was  liable  for  false  imprisonment.  Said  the 
Court:  "It  had  no  regulation,  and  could  legally  have 
none  that  a  passenger  before  leaving  its  cars  or  prem- 
ises, should  produce  a  ticket,  or  pay  his  fare,  and  if 
he  did  not,  that  he  should  then  and  there  be  detaine<l 
and  imprisoned  until  he  did  do  so.  At  most,  the  plaint- 
iff was  a  debtor  to  the  defendant  for  t\w  amount  of  his 
fare,  and  that  debt  could  be  enforced  against  him  by 
the  same  remedies  which  any  creditor  has  against  his 
debtor.  If  the  defendant  had  the  right  to  detain  him 
to  enforce  payment  of  the  fare  for  ten  minutes,  it  could 
detain  him  for  one  houi',  or  a  day,  or  a  year,  or  for  any 
other  time  until  compliance  with  its  demand.  That 
would  be  arbitrary  im])risonm(Mit  by  a  creditor  without 
process  or  trial,  to  continue  during  \\i->  will  until  his 
debt  should  be  i)aid.  Even  if  a  reasonable  detention 
may  be  justified  to  enable  the  carrier  to  inquire  into 
the  circumstances,  it  cannot  be  to  compel  payment  of 
fare.  The  detention  here  was  not  to  enable  the  gate- 
keeper to  make  any  incpiiry,  but  simply  to  compel  pay- 
ment llii  was  absolutely  informed  that  he  could  not 
pass  out  without  protlucing  a  ticket  or  paying  his  fan-. 
This  is  not  like  the  cases  to  which  the  learned  counsel 
for  the  defendant  has  called  our  attention,  where  rail- 
road conductors  have  been  held  justified  in  ejecting 
passengers  from  cars  for  refusing  to  ])roduce  tickets  or 
pay  their  fares.  A  i)assenger  has  no  right  to  ride  in 
a  car  without  payment  of  his  fare,  and  if  he  refuses 
to  pay,  the  railroad  company  is  not  bound  to  carry 
him,  and  may,  at  a  proi>er  place,  and  in  a  proper  man- 
ner, remove  him  from  the  car,  but  it  could  not  imprison 
liira  in  a  car  until  he  paid  his  fai-e,  for  the  purpose  of 
370 


CH.  XVII.]  LIABILITY  DURING  TRANSIT. 


§259 


compelling  payment.     These  views  have  the  sanction 
of  very  high  authority.     In  Sunbolf  v.  Alford,^  it  was 
held  that  an  innkeeper  could  not  detain  the  person  of 
his  guest  in  order  to  secure  payment  of  his  bill.     Lord 
Abinger  said:  'If  an  innkeeper  has  a  right  to  detain 
the  person  of  his  guest  for  the  non-payment  of  his  bill, 
he  has  a  right  to  detain  him  until  the  bill  is  paid,  which 
may  be  for  life;  so  that  this  defense  supposes  that  by 
the  common  law,  a  man  who  owes  a  small  debt  for 
which  he  could  not  be  imprisoned  by  legal  process, 
may  yet  be  detained  by  an  innkeeper  for  life.       The 
proposition  is  monstrous.     *     »     »     Where  is  the  law 
that  says  a  man  shall  detain  another  for  his  debt  with- 
out process  of  law?'     *     *     *     It  was  argued  before 
us  on  behalf  of  the  defendant,  that  the  ticket  sold  to 
the  plaintiff  was  the  property  of  the  defendant,  in- 
trusted to  him  for  a  special  purpose,  and  that  it  had 
the  right  to  prevent  him,  at  the  end  of  the  journey, 
from  carrying  away  this  property.     I  am  not  quitch 
ready  to  assent  that  af  (^er  the  defendant  sold  the  ticket 
to  the  plaintiff  it  retained  any  right  of  property  therein. 
But  even  if  it  did,  it  did  not  detain  him  on  that  ground; 
and  he  did  not  then  have  the  ticket  in  his  possession 
or  under  his  control,  and  hence,  a  detention  to  compel 
him  to  deliver  it  up  could  not,  on  that  ground,  be  jus- 
tified.    There  was  no  error  in  the  charge  of  the  judge 
in  reference  to  the  branch  of  the  case  we  have  thus  far 
considered.     The  counsel  of  the  defendant  excepted  to 
that  portion  of  the  charge  of  the  judge,  wherein  he  said 
in  substance,  that  the  defendant  had  no  more  right  to 
detain  plaintiff  until  he  paid  his  fare  than  a  lawyer 
would  have  to  detain  in  his  office,  a  client  who  con- 
sulted him  and  refused  to  pay  his  fee.     There  was  no 
error  in  this  illustration.     The  detention  in  either  case 
is  unlawful,  and  '^  condemned  in  the  law  upon  pre- 

13M.  W.  248.  371 


§260 


LIABILITY  DURING  TRANSIT. 


[part  III. 


^  .1-1' 

-sr..:., 

•  ■;».;! 


^c.;-" 


cisely  the  same  principles.  There  was  no  error  in  re- 
fusing to  charge  the  request  made  by  defendant's  coun- 
sel, that  'the  regulation  of  the  defendant  requiring  pas- 
sengers to  produce  and  surrender  a  ticket  or  pay  the 
legal  fare  before  leaving  the  station,  was  a  reasonable 
regulation.'  It  is  true,  that  whether  a  regulation  is 
a  reasonable  one  or  not,  is  a  question  of  law  for  the 
court,  but  this  request  reached  too  far.  It  implied  that 
the  passenger  was  to  remain  in  the  station  and  submit 
to  indefinite  detention  there  until  he  paid  his  fare,  and 
such  a  regulation  Avould  not  be  reasonable." 

§  2G0.  Non-payment  of  Fare. — The  passenger 
may  be  ejected  for  refusing  to  pay  fare,^  and  the  con- 
ductor may  insist  on  his  acceding  to  his  demand  for 
his  fare  Avithiu  a  reasonable  time.-  A  passenger,  being 
responsible  for  the  fare  of  a  ( hild  under  his  charge, 
may  be  ejected  for  refusal  to  pay  such  fare,  though  he 
has  paid  his  own."*  But  where  a  conductor  refused  to 
pass  a  child  on  half  fare  because  he  believed  it  to  be 
over  age,  and  the  mother  refused  to  pay  and  left  the 
train,  although  the  conductor  offered  to  pass  her  on 
ber  own  ticket  witliout  the  child,  it  was  held  that  the 
carrier  was  liable  for  the  ejection  of  both.^  A  lunatic, 
left  in  his  seat  alone  b}'  the  person  having  him  and  his 
ticket  in  charge,  may  be  expelled,  although  he  does  not 
understand  the  demand  for  his  fare,  where  the  carrier's 
servants  have  no  notice  of  his  mental  condition."' 

The  conductor  cannot  retain  the  money  tendered  or 


1  Shnlnr  v.  U.  Co.,  92  Mo.  339;  Groat 
Western  U.  Co.  r.  Millor,  19  Mirh.  Snii; 
Haley  v.  U.  Co.,  21  lowu,  15 ;  Chicago  etc. 
U.Co.f.  Bogcr,  1  Hrad.  App.  472;  Lillis 
f.  R.  Co.,  64  Mo.  4fi4;  27  Am.  Hop.  235; 
Ohio  etc.  11.  Co.  f.  Muhling,  30  111.  9;  81 

372 


Am.  Doc.  336;  O'Brien  v.  K.  Co.,  1.5  (iray, 
20;  77  Am.  Dec.  347. 

2  Fulton  f.  U.  Co.,  17  U.  C.  Q.  U.  42S. 

3  I'hila.  etc.  U.  Co.  r.  Uocllich,  r,2  .Md. 
300. 

4  Gibson  i:  R.  Co.,  .SO  Feil.  lU-p.  .■i"4. 
»  Willetsr.  R.   Co.,  14  Harb.  5h5. 


CH.  XVII.]  LIABILITY  DURING  TRANSIT. 


261 


the  rejected  ticket  and  eject  the  passenger  for  not  pay- 
ing the  fare  demanded.* 

§  261.    Requiring-  Previous  Purchase  of  Tickets. 

— A  regulation  is  reasonable  requiring  passengers  who 
have  not  purchased  tickets  to  pay  an  extra  sum  in  ad- 
dition to  the  regular  fare,  as  it  tends  to  confine  the 
collection  of  money  to  the  proper  accounting  oiHcers, 
and  to  prevent  frauds  by  the  train  servants.-  But  to 
enforce  such  a  regulation,  proper  facilities  must  be 
afforded  the  passengei*s  to  obtain  tickets  before  enter- 
ing the  vehicle;  an  accessible  place,  suflficient  force  to 
supply  all  applicants,"  and  the  office  open  a  reasonable 
time  before  the  advertised  time  of  starting.^     Other- 


1  Pn  Lanrans  v.  U.  Co.,  15  Minn.  49; 
2  Am.  Hl'I).  102;  IMaud  v.  K.  Co.,  55  Cal. 
570;  36  Am.  Ucp.  50;  Vankirk  r.  R.  Co.,7G 
ra.  St.  t',G;  18  Am.  Rop.  404.  lint  sec  Ilotf- 
bauerr.  R.  Co.,62  la.  342;  35  Am.  Hep. 
278;  3  N.  W.  Rep.  121 ;  Bait.  etc.  R.  Co.  f. 
jMcnonnUl.GSlml.  316. 

2  Chicago  etc.  R.  Co.  r.  Parks,  18  111.  460 ; 
St.  Louis  etc.  U.  Co.  r.  I)all)y,  19  III.  353; 
Stephen  v.  Smith,  29  Vt.  liio ;  St.  Louis  etc. 
R.  Co.  t'.  South,  43  111.176;  !I2  Am.  Dec. 
103;  Crocker  r.  R.  Co., 24  Conn.  249;  Por- 
ter f.  R.  Co.,  34  Barl).  .353;  liorileaux  v.  R. 
Co.  8  IIiiu.  579;  State  v  Choviu.  7  Iowa, 
204;  Dii  Lanrans  r.  R.  Co.,  15  Minn.  49;  2 
Am.  Rep.  102;  Inilianapolis  etc.  U.  Co.  i: 
Rinanl,  46  Ind.  293;  Jeflfcrsouville  etc.  R. 
Co.  r.  Rogers,  38  Ind.  116;  10  Am.  Uep. 
l«3;28Ina.  1;92  Am.  Dec.  276;  Ilillianl  r. 
Coolil,  34  N.  n.  230 ;  66  Am.  Dec.  765 ;  Peo- 
ple V.  Jillson,  3  I'ark.  Cr.  234;  State  r. 
C.oold,  53  Me.  279,  281  ;  Toledo  etc.  R.  Vn. 
f.  Wright,  (W  Ind.  0S6;  34  Am.  l)c.>.  277; 
State  i'.Overton,24N..J.L.671  ;61  Am.  Dec. 
435;  Cincinnati  etc.  R.  Co.  r.  Skillnian,  .39 
Ohio  St.  444;  Chicago  etc.  R.  Co.  r.  Flagg, 
43  111.  ,364;  92  Am.  Oec.  133;  Swan  r.  R. 
Co,  132  Mass.  116;  Bland  >:  R.  Co.,  55 
C;al.  570;  ,36  Am.  Rep.  50.  But  the  ex- 
cess sum  must  be  reasonable.  Saunders 
V.  R.  Co.,  L.  R.  5  Q.  B.  Div.  456;  London 
etc.  1{.  Co.  V  Watson,  1,.  R  6  C.  P.  Div. 
49.  and  the  fare  collycted  on  the  train, 
including  sacU  additional  amount,  must 


not  exceed  the  maximum  allowed  by 
statute.  Zagelmeyer  v.  R.  Co.,  60  N.  W. 
Rep.  436  (Mich.),  citing  R.  Co.  v.  Skill- 
man,  .39  Ohio  St.  444 ;  Chase  r.  R.  Co.  20 
N.  Y.  523.  Where  the  train  rate  exceeils 
the  legal  rate  the  passenger  need  tender 
only  the  ticket  rate.  Smith  v.  R.  Co.  23 
Ohio  St.  10.  A  regulation  is  valid  refus- 
ing to  carry  passengers  who  have  not 
purchased  tickets  and  requiring  the  con- 
ductor to  expel  such.  Lane  r.  R.  Co.,5 
Lea,  124. 

:i  Chicago  etc.  R.  Co.  v.  Parks,  18  111. 
460;  68  Am.  Dec.  562;  Porter  r.  R.  Co.,  .34 
Barb.  5.55;  Nellis  v.  R.  Co.,  .30  N.  Y.  505; 
Du  Laurans  r.  1{.  Co.,  15  Minn.  49;  2  Am. 
Rep.  102;  St.  Louis  etc.  R.  C".  ?•.  South, 
43  111.  17G;  92  Am.  Dec.  103;  St.  Louis  etc. 
R.  Co.  i\  Dall)y,  19  111.  352;  Chicago  etc. 
R.  Co.  V.  Flagg,  4.^  111.  364;  92  Am.  Dec. 
133;  .Jeffersonville  etc.  R.  Co.  r.  Rogers, 
.38  Ind.  116,  10  Am.  Rep.  103;  28  Ind.  1;  92 
Am.  Dec.  276;  Indianapolis  etc.  R.  Co.  t'. 
Rinard,  46  Ind.  293;  Chose  r.  R.  Co.,  16  N. 
Y'.  523;  Forsce  v.  R.  Co.,  63  Miss.  66;  56 
Am.  Rep.  801. 

4  Swan  i:  R.  Co.,  132  Mass.  116;  42  Am. 
Rep.  432;  Kverett  f.  R.  Co.,  C9  Iowa,  15; 
.58  Am.  Rep.  207;  St.  Louis  etc.  R.  Co.  v. 
Soutli,  43  111.  176;  92  Am.  Dec.  103;  White 
V.  R.  Co.,  26  W.  Va.  800;  see  Porter  t'.  II. 
Co.,,!4  Uarb.  ,353,  that  the  olHcc  must  be 
kept  open  even  after  the  advertised  time 
if  the   train  is  delayed.    By  statute  in 

373 


§262 


LIABILITY  DUUING  TRANSIT. 


[part  III. 


c 

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Avise,  the  failure  will  be  the  fault  of  the  carrier  and 
not  the  neglect  of  the  passenger.* 

§  262,  Showing  and  Surrendering  Tickets.— The 
passenger,  by  the  carrier's  rules  may  be  required  to  ex- 
hibit a  ticket  before  entering  the  vehicle,-  or  whenever 
called  upon  by  the  conductor  or  other  proper  officer.^ 
So,  a  regulation  is  valid  that  the  passenger  shall  sur- 
render his  ticket  when  called  upon,^  unless  the  pas- 
senger is  some  distance  from  his  destination,  in  which 
case  it  would  be  unreasonable  to  enforce  such  a  rule 
without  giving  him  in  return  a  check  or  other  evidence 
of  his  right  to  ride."  It  is  no  excuse  that  the  passen- 
ger has  lost  or  mislaid  his  ticket  or  forgotten  to  bring 
it  with  him."  But  he  is  entitled  to  a  reasonable  length 
of  time  in  which  to  find  his  ticket  if  he  has  mislaid  \V 
and  where  the  passenger  is  under  a  physical  disability 
which  prevents  him  from  being  able  to  search  for  it, 
it  is  the  conductor's  dutv  to  aid  him  to  find  it.** 


:':r 


Texas  the  ticket  oflk'o  must  open  for 
thirty  minutes  before  the  departure  of  a 
train:  Missouri  etc.  U.  Co.  v.  McClana- 
han,  66  Tex.  530;  1  S.  \V.  Uep.  576. 

1  Chicago  etc.  U.  Co.  v.  I'arks,  supra; 
aliter,  of  course,  where  tlie  iiasseiificr 
does  not  use  reasonable  dilijjence  him- 
self. Indianapolis  etc.  It.  Co.  v.  Ken- 
nedy, H  Am.  &  Eng.  U.  U.  Cas.,  407. 

2  Chicago  etc.  U.  Co.  r.  IJogher,  1  111. 
(App.)  472;  Pitts,  etc.  K.  Oo.  v.  Vandyne, 
f)7  Ind.  576;  2fi  Am.  Uep.  68;  .Jones  i:  K. 
Co.,  17  Mo.  (App.)  l.iS. 

3  Bennett  r.  R.  Co.,  7  Phila.  11;  Downs 
r.  U.  Co.,  36  Conn.  2H7;  4  Am,  Uep.  77; 
Crawford  v  U.  Co.,  26  Ohio  .'^t.  5H0;  Uip- 
ley  V.  New  Jersey  Trans.  Co.,  .^1  N.  ,1.  L. 
.•!S8;  People  V.  Caryl,  H  I'ark.  Cr.  ;!2(i;  I5al- 
tiiiiore  etc.  U.  Co.  v.  HUxher,  27  Md.  277; 
State  r.  Campbell,  32  N.  J.  L.  ,SO!i;  Ilib- 
))ard  V.  K.  Co.,  15  N.  Y.  455;  Loring  v. 
Aborn,  4  Cush.  608;  Pull.  Pal.  Car  Co.  v. 
Uced,  75  111.  125;  20  Am.  Uep.  T.Q;  Wil- 
lets  r.  K.  Co.,  ^4  Barb.  585;  .Standish  r. 

374 


Narragansett  Co.,  Ill  JIass.  512;  15  Am. 
Uep.  60;  lie  Lucas  i:  U.  Co.,  HH  La.  Ann. 
930. 

*  111.  C;eut.  K.  Co.  V.  Wliittemore,  43111. 
420;  'J2  Am.  Dec.  138;  North  etc.  U.  Co.,  r. 
I'age,  22  IJarb.  130;  VedJerr.  Fellows,  20 
N.  Y.  126. 

s  .state  f.  Thompson.  20  N.  II.  251 ;  Pitts- 
burgh etc.  U.  Co.  r.  Uennigh,  39  Iiid.  rm. 

6  Standish  v.  |{.  Co.,  Ill  Mass.  512;  15 
Am.  Uep.  66;  Jerome  r.  Smith,  48  Vt.280; 
21  Am.  Uep.  125;  Duke  v.  !{.  Co.,  14  l'.  C. 
Q.  U.  369,  377;  Crawforil  r.  K.  Co.,  2(!  oliio 
St.  5H0;  Downs  r.  K.  Co.,  .36  Conn.  2s7;  4 
Am.  Uep.  77;  Cresson  v.  K.  Co.,  11  I'liila. 
597. 

7  Curtis  V.  n.  Co.,  12  U.  C.  C.  P.  89;  Ma- 
ples V.  U.  Vn.,  38  Conn.  557;  9  Am.  Uep. 
434;  Int.  etc.  U.  Co.,  v.  Wilkes,  68  Tex. 
617;  2  Am.  St.  Uep.  515;  5  S.  W.  Uep.  491; 
Hayes  r.  U.  Co.,  30  Alb.  L.  J.  460. 

K  Louisville  etc.  U.  Co,  v,  Fleming,  14 
Lea,  128. 


CII.  XVII.]  LIABILITY  Dri:iNO  TRANSIT. 


§  262 


In  one  case,  the  plaintiff  took  a  train,  depending  on 
a  friend  talcing  passage  at  the  same  time  to  pay  his 
fare,  but  that  person  got  into  another  ear.     When  the 
conductor  demanded  his  ticket,  he  told  him  he  had 
neither  ticket  nor  money,  but  would  go  into  the  other 
car  and  get  the  money  from  his  friend.     The  train  was 
midway  between  the  stations.     The  conductor  refused 
to  delay,  and  put  him  off.     It  was  held  that  the  ejec- 
tion was  illegal.*     The  court  said  that  where  there  is 
no  refusal  to  pay  fare  or  produce  a  ticket,  but  for  some 
reason,  such  as  the  mislaying  of  the  ticket  or  the  loss 
of  his   pocketbook,   a   prompt   response   to   the   con- 
ductor's demand  is  impossible,  a  reasonable  opportu- 
nity must  be  given  the  passenger  to  look  for  what  is 
mislaid  or  lost,  or  provide  other  means  of  payment; 
and  the  law  does  not  require  every  one  to  have  posses- 
sion of  his  own  ticket,  or  the  friend  who  has  it  with 
him  to  be  near  by  at  the  hazard  of  expulsion.     And 
the  courts  will  not  permit  the  carrier  to  strictly  en- 
force the  rule  in  an  unreasonable  manner  where  satis- 
factory evidence  is  produced  to  account  for  the  failure 
to  have  the  ticket- 

The  grounds  upon  which  such  regulations  are  sus- 
tained are  that  they  prevent  frauds  upon  the  carrier 
both  by  the  public  and  the  carrier's  servants,  and  fa- 


1  Chirk  t'.  K.  Co.,91  N.  0.5(10;  49  Am. 
Ucp.  (U7. 

2  Ilihhard  r.  H.  Co,,  If,  N.  Y.  4.')5,  per 
Coinsiock,.!.,  As  iu  I'lill.  I'lil.  Car  Co.,  v. 
Iti'i'il,7,')lll.  125;  20  Am.  Uop.  2,i2,  whore 
tlio  plaintiff  purchaspdii  ticket  tor  a  l)erth 
in  a  sleepiiifrcar,  which  he  exhibited  to 
the  porter,  who  showed  him  his  berth, 
which  the  plaintiff  made  preparations  to 
occupy,  and  afterwards  the  ticket  was 
demanded  l)y  the  conductor  of  the  car, 
but  could  not  be  found.  The  train  had 
not  yet  left  the  station  where  the  ticket 
was  purchased,  and  the  pUiiutitf  procured 


from  the  defendant's  agent  a  writing  cer- 
tifyinR  that  he  had  paid  for  the  berth  he 
was  occupying.  The  conductor  refused 
to  accept  this  or  any  explanations  in  lieu 
of  the  ticket,  and  he  was  ejected.  So  in 
St.  Louis  etc.  IJ.  Co.  f.  Dalby,  10  111.  35B, 
where  the  ticket  agent,  having  no  tickets 
on  hand,  gave  the  passenger  a  receipt 
for  the  money,  which  the  conductor  re- 
fused to  recognize.  So  in  Maples i-.  K.  Co., 
38  Conn.  557;  9  Am.  Rep.  iU,  where  the 
conductor  knew  that  the  person  unable 
to  pro(lu(  o  his  ticket  was  a  commuter, 
and  that  it  had  not  expired. 

375 


^ 


§265 


LIABILITY  DURING  TRANSIT. 


[part  III. 


r"  "> 


■'•■• :.: 


cilitate  the  dispatch  of  business  and  the  speedy  car- 
riage of  passengers. 

§  263.  Other  Regulations  as  to  Tickets.  — Regu- 
lations are  reasonable  that  coupons  will  not  be  ac- 
cepted unless  detached  by  or  in  the  presence  of  the 
conductor,^  forbidding  conductors  from  passing  any 
one  on  half-fare  tickets,  unless  those  exhibiting  them 
shall  carry  a  permit  from  the  proper  officer  of  the 
road;^  requiring  passengers,  before  commencing  the  re- 
turn journey,  to  be  identified  by  the  proper  officer 
and  have  their  tickets  stamped;''  requiring  ]);»ssengers 
who  break  their  journey  to  have  their  tickets'  indorsed 
by  the  conductor.* 

§  264.     Concerning  Use  of  Carrier's  Premises. — 

A  regulation  is  valid  and  reasonable  excluding  from 
the  carrier's  premises,  i)ersons  not  passengers  or  not 
having  tickets;^  so  is  a  rule  forbidding  hackmen,  ped- 
dlers, express-men,  and  loafers  from  entering  a  pas- 
senger-room at  the  station."  A  passenger  may  not  be 
ejected  from  a  station  on  the  mere  whim  of  the  person 
in  charge.^ 


§  265.     Classification  of 

lations  of  a  common  carrier 

1  Boston  etc.  R.  Co.  v.  Chipman,  14r> 
Mass.  107;  4  Am.  St.  Rep.  293;  Norfolk 
etc.  R.  Co.  r.  Wysor,  82  Va.  im.  Rut  a 
terhnical  violation  of  it— as  whero  the 
(■oiiductor  can  sue,  that  thu  coupon  i.s 
from  the  ticket— will  not  justify  hiiu  in 
refusing  to  acc^'pt  the  coupon,  thouph  a 
willful  refusal  of  the  passenger  to  show 
the  ticket  and  allow  the  conductor  to  ex- 
amine the  case  will:  Louisville  etc.  R. 
Co.  r.  riarris,  9  Lea,  189;  42  Am.  Rep.  008; 
WiKhtnian  v.  R.  Co.,  7.^  Wis.  1G9;  9  Am. 
>St.  Rep.  778;  40  N.  W.  Rep.  689. 

2  Coetz  V.  R.  Co.,  50  Mo.  472. 

3  Mosherr.  U.  Co.,  17  BY'd.  Rep.  880;2.S 
Id.  32G ;  127  U.  .S.  390. 

370 


Passengers. — The  regu- 
classifying  or  diseriiriuat 

4  Recbe  V.  Ayers,  2S  Barb.  2' '  •:  j;;>- 
r.  R.  Co.,  42  N.  Y.  (S.  C.)  128. 

5  .Jencks  r.  Colemar,,  2  ."-Li'i!.  "1  ■■■n\. 
V.  Power,  7  "SU'U-,  000;  4i  An  f  415, 
Harris  v.  .-<tevcns, .!!  Vt.  79;  7.:  liei . 
.S:H7;  Barker  r.  R.  Co.,  18  Com.  U.  40, 
Markhamr.  Brown,8N.  IL  52,i;  .SI  Am. 
Dec.  209;  Landrigan  v.  State,  31  Ark.  BO; 
25  Am.  Dec.  547. 

«  /(/.  Hut  a  hackman  with  a  check  for 
baggage  may  enter  the  baggage-room. 
Summitt  1'.  State,  8  Lea,  415 ;  41  Am.  Rep. 
G37. 

7  As  in  this  case  for  spitting  on  the 
floor,  People  v.  McKay,  40  Mich.  4.TO;41 
Am.  Rep.  169;  9  N.  W.  Rep.  486. 


CH.  XVII.]  LIABILITY  DURING  TRANSIT. 


§265 


ing  between  different  passengers  or  designating  the 
character  of  accommodations  provided  and  designating 
the  persons  who  may  travel  upon  or  use  them,  have 
regard  usually  to  (a)  sex,  (h)  race,  or  {c)  special  accom- 
modations. 

(a)  The  carrier  has  a  right  to  reserve  a  car  or  other 
portion  of  his  vehicle  for  women  and  men  accompany- 
ing them.* 

(h)  Under  the  statutes  and  decisions  of  some  of  the 
States,  a  carrier  can  make  no  rule  prohibiting  a  pas- 
senger of  one  color  or  race  from  going  where  another 
passenger  of  a  different  color  or  race  would  be  per- 
mitted, under  tlie  su  «>  conditions,  to  go.-  In  others 
the  courts  see  no  injustice  or  illegality  in  such  a  dis- 
crimination."' Again,  in  at  least  seven  of  the  former 
slave  holding  States,\'ommon  carriers  are  required  by 
statute  to  provide  separate  cars  having  equal  accom- 
modation for  whites  and  blacks.^  And  in  the  absence 
of  a  statute  specifically  inhibiting  discrimination  of 
any  kind,  it  seems  to  be  now  settled  that  while  all  pas- 
sengers are  entitled  to  cqiia]  accommodation,  yet  these 
words  do  not  mean  hlviificol  accommodations,  and  that 
common  carriers  may  provide  separate  vehicles  or 
separate  parts  of  the  same  vehicle  for  white  passen- 
gers exclusively,  provided  they  furnish  equally  good 


1  Chicago  etc.  U.  Co.  r.  Williams, 55  111. 
185;  8  Am.  Uep.  641;  Mass  r.  R.  Co.,Hr, 
Wis.  450;  IT  Am.  Hop.  4H5;  39  Wis.  030;  42 
Wis.  6.54;  Peck  v.  K.  Co.,  70  N.  Y.  587; 
State  V.  Overton,  24  N.  J.  L.  4,S5,  441 ;  61 
Am.  Dec.  671;  Pittsburgh  etc.  K.  Co.  i-. 
Hinds,  RH  I'a.  St.  572;  91  Am.  Dec.  224; 
Memphis  etc.  K.  Co.  v.  Hensou,  85  Tenn. 
627 ;  4  Am.  St.  Hep.  776;  4  S.  W.  Hep.  5; 
IJrown  t'.  U.  Co.,  7  Fed.  Rep.  51 ;  .Mar- 
quette V.  R.  Co.,  3,S  la.  562 ;  provided  there 
is  room  for  the  other  passengers  else- 
where.   Bass  V.  B.  Co.,  supra. 


2  Cogcrr.  Packet  Co.,. S7  Iowa,  145 ;  De- 
Cuir  i-.  Hensoii,  27  La.  Ann.  1.  This  stat- 
ute was  held  void  as  a  regiilatiou  of  com- 
merce in  Hall  r.  l)e  Ciiir,  95  U.  S.  485; 
Central  R.  Co.  r.  Green,  86  Pa.  St.  427. 

3  West  Chester  R.  Co.  v.  Miles,  55  Pa. 
St.  200;  93  Am.  Dec.  744;  (ioines  v.  Mc- 
Caudless,  4  J'hila.  255;  ])aj  r.  Owen,  5 
Mich.  520;  72  Am.  Uec.  02;  Chesapeake 
etc.  R.  Co.  V.  Wells,  4  S.  W.  Rep.  5 
(Teun.). 

4  Ala.,  Ark.,Fla.,La.,Miss.,Tenn.,Tex. 

5  2  Stim.  Am.  St.  L.  §  8850. 

377 


f 


p^p 


§266 


LIABILITY  DURING  TRANSIT. 


[part  III. 


■••'•■""J 


•*  'If* 

-i!r,;.t. 


.0 


.::1 


accommodations  elsewhere  for  their  black  passengers.^ 
Obviously,  a  colored  passenger  is  entitled  to  the  same 
protection  against  other  passengers  as  a  white  passen- 
ger.2 

(cj  The  carrier  may  provide  special  accommoda- 
tions as  a  chair  or  parlor  car,  and  refuse  to  allow  per- 
sons to  ride  thereon  who  refuse  to  pay  extra  fare,''  or 
he  may  restrict  such  cars  to  passengers  to  distant 
points.*  So,  he  may  restrict  passage  on  certain  fast 
trains,  to  persons  holding  a  special  kind  of  ticket,'^ 
or  on  shipboard,  set  apart  a  table  for  the  special  use 
of  the  officers  of  the  boat." 

§  266.  Passengers  on  Freight  Trains. — The  car- 
rier may  refuse  to  carry  on  conveyances  not  devoted 
to  the  carriage  of  passengers;  as,  for  example,  freight 
trains;^  unless  he  holds  himself  out  as  a  carrier  on  such 
trains.^  Tiierefore,  not  only  regulations  that  no  ])as- 
sengers  shall  be  carried  on  such  trains,  but  that  no  one 
shall  be  carried  who  does  not  have  tickets  of  a  par- 
ticular description,"   or   who   does   not   first   procure 


1  Green  r.  The  Uridgeton,  9  Cent.  U  J. 
207;  Chicago  etc.  U.  Co.  r.  Williams,  fiu 
111.  185;  Gray  v.  R.  Co.,  11  Fed.  Rep.  687; 
Ilouekr.  R.  Co.,  HS  Fed.  Rep.  270;  The 
Sue,  22  Fed  Rep.  H4.i;  Logwood  r.  K.  Co., 
23  Fed.  Rep.  .SIS;  Murphy  v.  R.  Co.,  2.S 
Fed.  Rep.  07;  Coger  r.  I'acket  Co.,  .^7  la. 
il.");  Day  t'.  Owen,  supra;  Heard  r.  U.  C"o., 
2  Inter.  Com.  Rep.  ftOS;  1  Id.  ;!14;  Louis- 
ville etc.  R.  Co.  f.  State,  2  Id.  (il.T;  l.Sii 
t'.  S.  587;  .Smith  i:  Chamberlain,  17  S.  K. 
Rcp..S71 ;  ex  parte  I'lessy,  43  La.  Ann.  100; 
n  South.  Rep.  048;  Anderson  v.  R.  Co., 
G2  Fed.  Rep.  4fi. 

2  Richmond  et<:.  R.  Co.  v.  Jefferson,  16 
S.  K.  Kep.  69  ((ia.). 

.1  Wright  V.  R.  Co.,  20  Pac.  Rep.  740; 
Mar(iuette  r.  R.  Co.,  .^3  la.  6G2. 

4  St.  Louis  etc.  R.  Co.  v.  Hadly,  17  S. 
\V.  Rep.  711  (Ark.). 

«  Nolan  V.  R.  Co..  41  N.  Y.  (S.  C.)  541 ; 
Luke  Shore  etc.  R.Co.  v.  Rosenweig,  113 
I'a.  St.  510. 

378 


6  Ellis  r.  N'arragansett  Co.,  Ill  Mass. 
146. 

7  111.  Cent.  R.  Co.  i-.  Nelson,  59  111.  112; 
111.  Cent.  R.  Co.  t'.  Johnson,  67  111.  ^U; 
Arnold  v.  R.  Co.,  KA  111.  27.'?;  25  Am.  Iti  p. 
386;  Katonr.  R.  Co.,57N.  Y.  .(82;  .-Nlureh 
V.  R.  Co., 29  N.  II.  9;  Ilon.ston  etc.  R.  Co. 
V.  Moore,  49  Tex.  .^1 ;  Chicago  etc.  R.  Co. 
V.  Randolpli,  53  111.  516 ;  Thomas  l:  R.  Co., 
72  Mich.  255. 

H  Flinn  r.  R.  Co.,  1  Ilonst.  469;  McGee 
V.  R.  Co.,  92  Mo.  208;  1  Am.  St.  Rep.  706; 
Chicago  etc.  R.  Co.  r.  Flagg,  43  111.  ,364; 
92  Am.  Dec.  1.33;  Hazard  r.  R.  Co.,  1  Hiss. 
503 ;  Mobile  etc.  R.  Co.  r.  McArthur,  43 
Miss.  180. 

9  Faukncr  v.  R.  Co.,  55  Ind.  ,309;  111. 
Cent.  R.  Co.  t'.  Nelson,  .59  IH.  110;  Dun- 
lap  V.  R.  Co.,  35  Minn.  203;  or  a  written 
pennit,  Thomas  v.  R.  Co.,  73  Mich.  355; 
40  N.  W.  Rep.  463. 


CH.  XVn.]  LIABILITY  DURING  TRANSIT. 


§266 


tickets  at  the  company's  oflQf^e,  are  reasonable:'  pro- 
vided the  office  is  kept  open  or  proper  facili iies  are 
given  for  such  purpose.- 

In  the  case  of  the  freight  train,  the  carrier  is  not 
obliged  to  adopt  all  the  appliances  and  devices  which 
the  law  exacts  of  all  carriers  of  passengers  on  passenger 
trains,  in  the  course  of  the  transit  or  in  the  receiving 
and  landing  of  passengers,  for  tlieir  safety  and  comfort.'' 
IJut  so  <"ar  as  are  involved  care  and  attention  to  the 
working  of  the  locomotive  and  machinery,  the  cars  and 
their  running  gear,  and  a  strict  attention  to  the  con- 
dition of  the  road  bed,  and  objects  upon  its  track  and 
the  like,  there  is  no  recognized  distinction  between  the 
passenger  coach  and  the  freight  car  on  which  a  pas- 
senger is  being  carried.* 

Though  there  be  a  rule  to  the  contrary,  persons 
allowed  to  ride,  and  whose  fare  is  accepted  or  not  de- 


!    ) 


1  Cleveland  etc.  U.  Co.  v.  nartram,  11 
Ohio  St.  4!)" ;  St.  Louis  etc.  K.  Co.  v.  Myr- 
tle, 51  Inil.  50G;  Lake  Shore  etc.  K.  Co.  r. 
Greenwood,  7!)  I'a.  St.  .S7.S;  Evans  t:  U. 
Co., 56  Ala.  'Mti;  28  Am.  Kop.  771;  Kansas 
etc.  R.Co.  f.  Kesslcr,  IS  Knu.  62.S;  lUi. 
nois  etc.  U.  Co.  i'.  Johnson,  67  111.  H12; 
Toledo  etc.  H.  (\>.  v.  Patterson,  fi.S  111.  ,S04 ; 
Illinois  etc.  U.  Co.  i'.  Sutton,  42  111.  438; 
92  Am.  Dec.  81 ;  Illinois  etc.  U.  Co.  v. 
Nelson,  59  111.  110;  Lawc.  It.  Co.,  .H2  Iowa, 
534;  Indianajiolis  etc.  II.  Co.  v.  Kinard, 
46  Ind.  293;  Uurlington  etc.  R.  Co.  v. 
Uose,  11  Neb.  177;  8  N.  W.  Hep.  433; 
Wrown  V.  R.  Co.,  .H8  Kas.  634 ;  16  Pac.  Rep. 
942;  Indianapolis  etc.  It.  Co.  i'.  Kennedy, 
77  Ind.  607. 

2  St.  Lonis  etc.  R.  Co.  v.  Myrtle,  61  Ind. 
566;  Kvans  v.  U.  Co.,  66  Ala.  246;  28  Am. 
Uep.  771 ;  Chicago  etc.  R.  Co.  v.  Klngg,  4.S 
111.  .364;  92  Am.  Dec.  133;  Illinois  etc.  R. 
Co.  r.  Johnson,  67  111.  312;  Illinois  etc.  R. 
Co.  I'.  Sntton,  42  111.  4i8;  92  Am.  Dec.  81. 

s  Shoemaker  v.  Kingsbury,  79  U.  S.  369; 
Mnrch  v.  R.  Co.,  29  N.  U.  42;  61  Am. 
Dec.  631;  Hazard  v.  K.  Co. post;  Indian- 
apolis etc.  R,  Co. I'.  Horst,  post;  Indian- 
apolis etc.  R.  Co.  V.  Beaver,  41  lud.  493 ; 


Oviattr.  R.  Co.,  43  Minn.  300;  46  N.  W. 
Rep.  436;  Arkansas  etc.  R.  Co.  v.  Can- 
man,  52  Ark.  517 ;  13  S.  \V.  Rep.  280;  Crane 
V.  R.  Co.,  84  (Ja  651 ;  Wallace  v.  U.  Co.,  98 
N.  C.  494;  4  8.  E.  Rep.  50;i;  Uobbs  v.  U. 
Co.,  49  Ark.  337 ;  5  S. W.  Hep. 586 ;  Browne 
V.  H.  Co.,  lOS  N.  C.  .34  ;  12  S.  E.  Rep.  958. 
4  Shoemnkerr.  Kingsbury,  79  U.S. 369; 
Hazard i-.  R.  l^o.,  1  Hiss. 503 ; 26  III.  373 ; In- 
dianapolis etc.  R.  Co.  r.  llorst,  93  U.  S. 
291 ;  Ohio  etc.  It.  Co.  v.  Dickerson,  B9  Ind. 
317;  lOlgerton  r.  H.  Co.,  35  Barb.  389;  39 
N.  Y.227;  Ohio  etc.  R.  Co.  i:  Muhling,  30 
111.9;  81  Am.  Dec.  XiG:  Ohio  etc.  R.  Co. 
r.  .Selby,  47  Ind.  471;  17  Am.  Rep.  719; 
Flinn  f.  R.  Co.,  1  lloust.  400;  Dunnt).  K. 
Co.,  58  Me.  187;  4  Am.  Hep.  207;  New- 
York  etc.  R.  Co.  f.  Doane,  115 Ind.  435;  7 
Am.  St.  451;  17  N.  E.  Rep.  913;  McGee  v. 
R.  Co.,  92  Mo. 208 ;  4  S.  W.  Rep.  739 ;  Wag- 
ner r.  R.  Co.,  97  Mo.  612;  10  S.  W.  Kep. 
486;  Mo.  Pac.  R.  Co.  f.  Holcomb,  44  Kas. 
.332 ;  24  Pac.  Rep.  467 ;  Woolery  v.  R.  Co., 
107  Ind.  .381 ;  8  N.  E.  Hep.  226 ;  Sutherland 
V.  R.  Co.,  28  N.  Y.  (S.)  211 ;  Browne  v.  R. 
Co.,  108  N.  C.  34;  12  S.  E.  Rep.  968;  Olson 
V.  R.  Co.,  46  Minn.  536 ;  48  N.  W.  Bep.  445. 

379 


'.«^t  \  I 


§266 


LIABILITY  DURING  TRANSIT.  [PAKT  III. 


-. .. ... 

C.    -;' 

.it\  ■- 

-• :,: 
-ir. , 

•  ..a 
•*■": 


:;:;* 


manded  on  such  trains,  are  passengers,*  and  this  is 
clear  where  the  passenger  has  no  knowledge  of  the 
rule,  for  such  a  regulation  is  not  to  be  presumed  to  be 
known  to  the  passenger;-  and  as  it  is  customary  in 
many  parts  of  this  country  for  railroads  to  carry  pas- 
sengers on  freight  trains,^  the  fact  alone  that  the  train 
is  a  freight  train,  does  not  per  sc  declare  to  the  pas- 
senger that  it  is  not  such  a  train  at  he  is  invited  to 
take  passage  upon.^  Even  when  he  knows  of  the  gen- 
eral regulation,  yet  if  the  conductor  or  servant  in 
charge  of  the  train  permits  him  to  ride,  and  he  does 
so,  assuming  that  the  conductor  has  the  authority,  not- 
withstanding the  regulation,  to  do  so,  he  is  a  passen- 
ger. A  person  invited  or  permitted  by  a  conductor  to 
ride  on  a  freight  train,  may  know  the  general  rules 
of  the  company  forbidding  passenger  traffic  on  such 
trains,  but  under  the  circumstances  of  time  and  place 
such  as  the  usages  of  the  company,  make  up  and  ap- 
pearance of  the  train,"  and  the  acts  of  the  conductor 
in  charge  thereof,  he  may  have  good  reason  lo  be- 
lieve that  "the  conductor  'in  thai  particular  case  had 
the  right  to  do  as  he  had  done;  the  act  being  within 
the  actual  or  apparent  line  of  his  duty."  The  con- 
ductor having  wide  authority  in  the  running  of  the 


1  Dunnv.  B.  Co.,fi8Me.  192;4  Am.Rep. 
2G7;  Creed  v.  K.  Co.,  86  I'li.St.  LSI);  27  Am. 
Rep.  G9.t;  Ilanson  v.  R.  Co.,  .S8  La.  Ann. 
Ill ;  58  Am.  Rep.  162 ;  Alabama  etc.  R.  Co. 
V.  Viirborongh,  8H  Ala.  2.'iS;  .S  South  Rep. 
447 ;  Kast  .Saginaw  R.  Co.  v.  TJohn,  27  Mich. 
fiO.S ;  Lucas  t).  R.  Co.,  ,SH  Wis.  41;  Wash- 
burn r.  R.  Co.,  H  Ileail,  6.S8;  Now  York 
etc.  R.  Co.  r.  Ball,  5,S  N.  J.  (L.)  2HS;  21 
Atl.  Rep.  1062. 

2  Dunn  V.  R.  Co.,  BS  Jle.  187 ;  Waffner  f. 
R.  Co.,  97  Mo.  512 ;  10  S.  W.  Rep.  486 ;  St. 
Joseph  etc.  R.  Co.  v.  Wheeler,  m  Ka«.  Oai ; 
lOl'ac.  Bcp.  401;  AVilton  v.  R.  Co.,  107 
Mass.  108;  125  Mass.,  i:in:  Hrown  r.  U.  Co., 
38  Kas.63;  16  Pac.  Rep.  942. 

380 


8  Iterry  v.  R.  Co.,  25  S.  W.  Ilcp.  220 
CMo.),  per  Martin,  J. 

4  As  IS  incorrectly  assumed  in  Katon  v. 
R.  Co.,  57  \.  Y.  .SH2;  I.'.  Am.  Rep.  51.1; 
Texas  etc.  R.  Co.  v.  Rlack,  27  S.  \V,  Uep. 
118  (Tex.) 

«  See  Intern..;ional  etc.  R.  Co.  v.  Cock, 
68  Tex.  71.1;  6  S.  \\.  Rep.  6.S5;  Powers  v. 
R.  Co.,  15.1  Mass.  188;  26  N.  E.  Rep.  446; 
111.  Cent.  R.  Co.  r.  Meachan,  19  S.  W. 
Rep.  2.S2. 

6  Martin, .!.,  in  Hen-y  r.  R.  Co.,  25  S.  W. 
Rep.  2:i5;  Files  v.  R.  Co.,  149  Mass.  201; 
21  X.  E.  Rep.  311;  Powers  r.  R.  Co.,  183 
Mass.  188;  26  N.  E.  Rep.  446. 


CII.  XVII.]  LIABILITY  DUIIINQ  TRANSIT. 


§267 


train,  bis  position  being  not  unlike  tbat  of  tbe  captain 
of  a  A'essel,  tbe  pasenj^er  may  well  bave  relied  upon 
bis  autbority,  wbere  no  sicb  inference  could  be  drawn 
were  tbe  person  giving  tljf  permission  a  brakemau  or 
otber  servant  baviug  no   -barge  over  tbe  train.' 

Tbe  question  is,  after  all — as  we  bave  already  seen 
in  tbe  case  of  a  passenger  on  an  ordinary  train,  wbo 
rides  free  by  tbe  consent  of  tbe  conductor  or  otber  per- 
son in  charge — one  of  good  faitb  on  tbe  part  of  tbe 
passenger  based  on  tbe  passenger's  knowledge  of  tbe 
rules  and  whatever  conies  to  bim  at  tbe  time  to  lead 
bim  to  believe  tbat  tbe  carrier's  servant  bas  a  right 
to  waive  those  rules.-  If  the  servant  bad  expressly 
stated  that  be  bad  no  authority,  the  presumption 
agaiust  the  passenger  would  be  very  strong;''  but  even 
then  it  would  not  be  conclusive.  Other  circumstances 
woubl  be  still  stronger  against  the  passenger,  as  wbere 
he  tips  or  bribes  the  conductor,  to  allow  bim  to  ride.* 

§  207.    Dangerous  and  Disorderly  Passengers.— 

The  carrier  bas  power  (aud  it  is  likewise  bis  duty^')  to 
expel  from  tbe  vehicle,  or  to  confine  therein,  passen- 
gers whose  presence  is  either  dangerous  or  extremely 
offensive  to  otber  passengers;  and  in  the  case  of  those 
whose  presence  he  bas  reason  to  believe  is  likely  to  re- 
sult in  injury  or  annoyance  to  bis  otber  passengers,  with- 
out even  waiting  for  an  overt  act  of  violence.^  This 
class  will  include  gamblers,  pickpockets  and  sneak 


1  CandiflF  v.  R.  Co.,  42  La.  Ann.  477;  7 
South  Kt  p.  601 ;  Hansen  r.  U.  Co.,  38  La. 
Ann.  Ill;  International  etc.  K.  Co.  v. 
I'rince,  77  Tex.  500;  14  S.W.  Rep.  171;  Mc- 
Cecr.  R.  Co.,  92  Mo.  20H;  4  8.  W.  Rep. 
739;  Muelheusen  v.  R.  Co.,  91  Mo.  344; 
2  S.  W.  Rep.  315. 

2  Toledo  etc.  R.  Co.  v.  Brooks,  81  111.  246. 

3  Gulf  etc.  R.  Co.  V.  Campbell,  76  Tex. 


174;  13  S.  W.  Rep.  19;  Houston  etc.  R. 
Co.   V.  Moore,  49  Tex.  31. 

4  Can.  Pac.  R.  Co.  v.  Johnson,  L.  R.  3 
Q.  15.  213  (Quebec) ;  Powers  v.  R.  Co.,  153 
Muss.  188 ;  26  N.  E,  Rep.  446. 

«  .See  §  302. 

6  Vinton  v.  R.  Co.,  11  Allen.  304;  Sulli- 
van r.  R.  Co.,  148Mass.  169;  18  N.  K,  Rep. 
617;  see  Thomp.  Carr.  Pass.,  382. 

381 


li 


§  268 


LIABILITY  niTUINO  TUAiVSIT. 


[PAKT  III. 


.:i 


thieves,'  persons  p-ossly  iiitoxlcjited,-  or  one  ver<i;in^ 
on  delirium  tremens,"  or  a  disorderly  iK'rson,'  ^^'lll^> 
mere  bad  manners  would  not  Ix'  a  sunirlcnl  «;r(iund,'' 
yet.  the  nse  of  profane  and  indecent  lan<;iia;;(',  cs- 
jtecially  in  the  preseiue  of  wonuMi  would.''  So  as  ((» 
one  unable  to  sit  up  and  vomit in;j;,  even  lliouj^li  not 
from  the  elTeet  of  intoxicatin{>'  li(iuors.^  The  carrier 
will  be  resi)onsible  for  the  aet  of  his  servant  in  expel- 
lin<;-  a  passenj^er  from  his  vehicle  under  a  mistake  of 
fact  or  of  judgment  as  to  the  misconduct  of  (he  laltci'.'^ 
And  a  father  cannot  be  removed  on  account  of  the  mis- 
behavior of  a  y;r()wn  son." 

§  "208.  Notice  of  Regulations. — TlM-re  are  some 
rules  and  rej-ulations  of  the  carrier  which  the  i)assen- 
j^er  is  bound  to  know,  and  if  he  has  not  made  himself 
accpiainted  with  them,  he  cannot  set  u\>  want  of 
knowled{^e  on  his  part  where  the  carrier's  servants  at- 
tempt to  enforce  them.'"  The  most  common  of  this 
class  of  rej»ulations  are  those  rejiJirdinj:;  the  times  of 
runninf"'  c»f  trains  or  other  conveyances  and  the  places 


1  Thnrston  v.  K.  Co.  4  Dill,  mx ;  Smith 
r.  Wilson, HI  IIow.  I'r.  272 ; and  sei- Tlionip. 
C'urr.  Pass.,  .'i02. 

2  Vinton  V.  It.  Co.,  11  Allen,  ,104  ;  ft7  Am. 
Dec.  714;  Murphy  r.  H.  Co.,  118  Mass.  228; 
State  V.  ncss,  26  N.  ,1.  I,.  224 ;  ncndriok-; 
r.  K.  Co.,  12  Jones  &  S.  8 ;  Hailroiul  Co.  v. 
Velleley,  82  Ohio  St.  .S4,'5;  .SO  Am.  Uep.  GOl ; 
Halt.  etc.  K.  Co.  r.  Mi-l)oniil(l,68  Ind.  316; 
Sullivan  v.  R.  Co.,  148  Mass.  119;  18  N. 
E.  Uep.  G17;  Cinn.  etc.  U.  Co.  v.  Cooper, 
120  Ind.  469;  22  N.  E.  Rep.  340.  Slight 
intoxication  is  not  a  good  jaotind  for 
ejection:  Pntnam  v.  H.  Co.,r)5  N.  Y.  108; 
Pitts,  etc.  U.  Co.  t'.  Vandyne,  67  Ind.  57G; 
26  Am.  Rep.  68. 

3  King  r.  R.  Co., 22  Fed.  Rep. 413 ;  Atchi- 
son etc.  R.  Co.  t'.  Weber,  3.S  Kan.  543;  62 
Am.  Rep.  643;  6  Pac.  Rep.  877. 

4  Chicago  3tc.  R.  Co.  v.  Griffin,  68  III. 
499. 

382 


'i  Pntnam  r.  U.  Co.,  mipra ;  Prcndcrpist 
f.  Compton,8(\  &  I'.  4.')4. 

6  Chicago  etc.  R.  Co.  i-.  (;rinin,  (W  111. 
497. 

^  Umont  r.  U.  Co.,  1  Muckey,180;  47 
Am.  lii'p.  2.i8. 

»  UiK'K'ins  r.  Watervliet  Tp.  Co.,  46  .V. 
Y.  23  ;  7  Am.  Rep.  293  ;  Cimnolly  v.  U.  Co., 
41  La.  Ann.  63 ;  5  South.  Uep.  2,')9 ;  G  Id.  526 ; 
but  see  Lomont  v.  R.  Co.,  1  Mackey,  180; 
47  Am.  Rep.  2,S8. 

9  Louisville  etc.  R.  Co.  r.  .Muybin,  66 
Miss,  n.i;  t  South.  Rep.  401. 

10 Cheney  r.  R.  Co.,  11  Mete.  121 ;  4r.  Am. 
llec.  190;  Dietrich  v.  R.  Co.,  71  Pa.  St.  432; 
McUue  V.  R.  Co.,  88  N.  C.  626;  43  Am.  Uep. 
748;  State  u.  Overton,  24  N.  .J.  (L.)  4;t.1; 
Terry  r.  R.  Co.,  13  Ilun.  3.W;  Gulf,  etc., 
R.  Co.  I'.  Moody,  30  S.W.  Rep.  574  (Tex.). 


CII.  XVII.]  LIAnirJTY  DU KINO  TUANSIT. 


§209 


at  which  thoy  slo]).'  lUit.  rc^iilatioiis  as  to  the  tiiu«» 
within  whicli  a  tic  kct  must  be  used,'-  as  to  what  cUishoh 
of  persons  it  is  ^cxxl  Cov^'  jis  to  wiial  I^inds  of  (rains  it 
is  j;()o(l  uj)on/  or  tliat  tielvets  are  only  <;()0(1  for  con- 
tinuous i)assage/'  must  bo  brouglit  lionie  to  the  \}aH- 
senj^er. 

If  the  carrier's  known  rules  are  cliauj;e(l  by  him,  he 
must  };ive  notice  of  tlie  chanj'e  to  tlie  ])assen<i(>r  whom 
he  seelvs  to  bind  by  tliem."  A  passenj^cr  need  not  take 
notice  of  a  ruh'  whicli  contrav<Mies  a  statute^ 

§  209.  Persons  under  Physical  or  Mental  Disa- 
bility. —  Towards  passenj^crs  atl'ected  by  a  diSUbility, 
either  i)hysical  or  mental,  a  de<;Tee  of  care  is  due  by 
the  carrier  in  proportion  to  the  liability  to  injury  from 
the  want  of  it — i)rovided,  (►f  coui'se,  that  the  servants 
of  the  carrier  have  notice  of  such  disability."  This  rule 
has  been  applied  to  the  case  of  very  younjij  children, 


1  Dnlinp  r.  H.  Co.,  fir.  Md.  120;  Wells  v. 
n.  Co.,  (•>  South.  Hep.  7.S7  (Miss.) ;  Vh\- 
caRot'tc.  It.  Ci).  V.  RaiiJolph,  5H  111.  510; 
I'itts.  I'tc.  1!.  Co.  r.  Niiiuiii,  fiO  Inil.l41;19 
Am.  licp.  70";  Ohio  utc.  U.  Co.  r.  Ap- 
plewhite, 52  Iiul. 540 ;  ChiciRo  otc.;  U.  Co. 
r.  Hills,  104  Inil.  13;  Fink  f.  It.  Co.,  4 
I-iins,  147;  TiOKiin  r.  U.  Co.,  77  Mo.  063; 
IJcaiK'hmnp  f.  I{.  Co.,St>T«x.  307;  Atchi- 
son ttc.  U.  Co.  V.  Gants,  38  Kas.  608; 
nPuc.  Uep.  54. 

2  Punn.  U.  Co.  v.  Splcker,  105  Pa.  St. 
142. 

3  Chicnpo  vU:  U.  Co.  v.  Chisholm,  79 
111.  5S4 ;  Maroney  I'.  U.  Co.,  106  Mass.  157; 
8  Am.  Ki'p.  305. 

4  Sec  ante  §  207  freight  trains. 

«  Choncy  f.  U.  Co.,n7i<e;  Drewv.  K.Co., 
61  Cal.  425 ;  Oil  Creek  etc.  K.  Co.  v.  Clark, 
72  Pa.  St.  231. 

6  Lake  Shore  etc.  B.  Co.  v.  Greenwood, 
79  Pa.  St.  373 ;  Kansas  etc.  11.  Co.  t'.  Kess- 
Icr,  13  Kas.  523 ;  Lane  v.  K.  Co.,  5  Lea.  124 ; 
Bumham  v.  U.  Co.,  63  Me.  298.  18  Am, 


Uep.220;  I'itts.  etc.  I{.  Co.   r.  Ilerrymaii, 
30  N.  K.  Kcp.  72S  (Ind.), 

1  Kolmisou  V.  U.  Co.,  38  Pac.  Ecp.  94, 
722  (Cal.). 

«  Shpi-idau  i-.  U.  Co.,  .W  N.  Y.39;  93  Am. 
Dec  490;  34  Uow.  Pr.  217;  Giles  v.  U. 
Co.,. 37  U.  C.  (}.  15.  3(10,  309;  I'ittshiirKhelc. 
H.  Co.  r.  McClintr.  50  Pa.  St.  294;  Coliini- 
bns  etc-  K.  Co.  v  Powell,  40  Ind.  37;  Wil- 
letts  r.  U.  Co.,  14  I'.ail).  r.8.J:  Toledo  etc. 
It.  Co.r.  T5u(ldleley,54  111.  10;  5  Am.  Rep. 
71;  Itidonhour  t'.  It.  Co.,  102  Mo.  270;  14 
8.  W.  Kep.  7G0;  .St.  Louis  etc.  It.  Co.  r. 
Finley,  79  Te.\-.  85;  15  S.  W.  Hep.  2G0; 
Wardle  r.  IJ.  Co.,  35  I,a.  Ann.  204;  Hick- 
man r.  ll.Co.,  91  Mo.  4;i3;4S.\V.  Hop.  127; 
East  Line  etc.  It.  Co.  r.  Hushing,  69  Tex. 
30G;6S.  W.  Uep.  834;  Shenandoah  etc. 
R.  Co.  V.  Moose,  83  Va.  827;  3  S.  E.  Hep. 
796. 

9  Toledo  etc.  K.  Co.  v.  Baddleley,  supro ; 
Willetts  r.  11.  Co.,  14  Barb.  485;  New  Or- 
leans etc.  K.  Co.  V.  Statham, 42 Miss.G07 ;97 
Am.  Dec.  478;  McGinney  v.  K.  Co.,  7 
Manitoba,  151. 

383 


iis-L 


S^^PT^ 


§269 


LIABILITY  DURING  TRANSIT.  [PART  III. 


especially  when  traveling  alone,^  aged  and  feeble,  sick 
or  crippled  passengers,-  insane  persons,"*  and  intoxi- 
cated persons.* 

In  Lake  Shore  R.  Co.  v.  Sakmau,^  the  plaintiff  was 
returning  on  a  train  with  a  number  of  his  brother 
Odd  Fellows  from  the  dedication  of  a  building  at  To- 
ledo, when  A,  one  of  the  number,  and  a  fellow  passen- 
ger, who  occupied  the  seat  immediately  in  front  of 
plaintiff,  was  taken  sick,  and  was  suffering  great  pain, 
occasioned  from  scrotal  hernia.  Some  of  the  friends  of 
the  sick  man  went  for  a  physician,  also  on  the  train. 
The  doctor  attended  A,  but  was  unable  to  reduce  the 
hernia  in  the  seat  where  the  sick  man  was.  He  said  it 
was  necessary  to  find  some  place  where  the  man  could 
be  put  on  his  back,  and  his  lov/er  clothes  removed. 
The  passenger  car  was  filled  principally  with  ladies, 
and  that  wa.s  not  a  proper  place  to  expose  his  person. 
Thereupon,  the  conductor  was  called  in,  and  told  of 
the  trouble,  and  asked  if  there  was  not  some  jjlace  on 
the  train  where  they  could  take  the  man  and  lay  him 
on  his  back.  The  conductor  said  there  was  a  caboose 
at  the  rear  of  the  train,  having  seats  at  the  side,  and 
also  a  cot,  where  they  could  take  the  man  when  the 
train  stopped  at  the  next  station.  Afterwards,  the 
train  having  stopped,  and  the  ])hiintilf  and  several  other 
passengers  being  in  the  aet  of  carrying  A  into  the  ca- 
boose, the  plaintiff  was  injured  by  falling  between  the 


1  Hetnminpway  v.  R.  Co.,  72  Wis.  42;  7 
Am.  St.  Uep.  82:!;  87  N.  W.  Kep.  804; 
Hrennan  r.  R.  Co.,  45  Conn.  284  ;  2!>  Am. 
Rep.  6"9;Inilianiii)olist'tc.  K.Co.  r.  I'itzt'r, 
109  Inil.  179;  58  Am.  Rep.  .H87 ;  6  N.  E, 
Rep.  310;  10  Id.  70;  Srctropolitan  etc.  U. 
Co.  V.  Moore,  8.S  (Jii.  453 ;  ID  S.  K.  Rop.  7,S0; 
Redcnhour  v.  R.  Co.,  102  Mo.  270;  14  S.  W. 
Rep.  760. 

a  Halt.  etc.  R.  Co.  f.  I.eafley,65  Mil. 671 ; 
Jacksonville  t'tc.  R.  Co.  r.  ('liappi'll,  21 
Fla.  175;  Paddock  v.  U.  Co.,  ;^7  Fed  Rep. 

384 


841:  Connolly  r.  R.  Co.,  41  I,a.  Ann.  07; 
5.Si)nlli  Rep.  2,W;  6  Id.  520. 

■'1  Willclts  V.  R.  Co.,  14  Hart).  485. 

4  Haley  r.  V..  Co.,  21  Iowa,  15;  Milli- 
inan  r.  R.  Oo.,f)  Thomp.  &  C.  5S5;  a-  \, 
Y.  r,42;  Majfnire  f.  R.  Co.,  llo  Mass.  2:i:i; 
Whalen  v.  U.  Co.,  <>0  Mo.  .S2.I;  (Jiles  r.  K. 
Vo.,  H6V.  C.  Q.  R.  .SiiO;  Cincinnati  etc.  R. 
Co.  I'.  Cooper,  120  Inil.  407;  22  N.  K.  Uep. 
340;  Johnson  r.  R.  Co.,  16  South.  Rep.  75 
(Ala.). 

fi  40N.  K.  Rep- 891  (Ohio). 


CH.  XVn.]  LIABILITY  TURING  TRANSIT. 


§269 


car  and  the  caboose,  the  platforms  being  of  different 
heights,  and  there  being  a  space  between  them.     A 
verdict  in  his  favor,  against  the  railroad,  was  aflftrmed 
by  the  Supreme  Court,  Burket,  J.,  saying:  "On  the  part 
of  the  defendant,  it  is  urged  that  the  conductor  had 
uo  control  over  plaintiff  to  order  him  to  do  anything 
in  aid  of  the  sick  man;  that,  as  plaintiff  was  not  bound 
to  obey  the  orders  of  the  conductor  in  that  regard,  what- 
ever he  did  was  purely  voluntary  on  his  part,  and  that 
he  assumed  all  the  risks  incident  to  his  voluntary  acts; 
aud  that  the  conductor  had  no  authority  to  bind  the 
company  in  giving  orders  as  to  the  sick  man.     On  part 
of  plaintiff,  it  is  urged  that  there  is  no  difference  in 
the  obligation  of  the  company,  whether  the  removal  of 
the  sick  man  was  undertaken  by  the  direction  and 
order  of  the  conductor,  or  simplj'  by  his  permission; 
that  the  duty  devolved  upon  the  company  to  take  rea- 
sonable care  of  the  sick  passenger  on  its  train,  and 
that,  when  other  passengers  assisted  the  officeria  of  the 
train  in  the  performance  of  that  duty,  the  company 
owed  to  such  assisting  passengers,  the  obligation  of  or- 
dinary care  to  prevent  injury  to  them.     If  no  duty  de- 
volved upon  the  company  to  take  reasonable  care  of 
the   passenger  who   became  sick  on   its  train,  then 
neither  the  order,  direction,  nor  permission  bound  the 
company,  because  such  order,  direction  or  permission 
was  not  within  the  scope  of  his  employment,  and  not 
in  the  line  of  his  duties.     The  case,  therefore,  turns 
upon  the  question  whether  or  not  a  duty  devolves  upon 
a  railroad  company  to  take  reasonable  care  of  passen- 
gers who   become  sick   after  entering  its  cars?     In 
travel  by  ship,  care  and  medical  attendance  are  always 
l)rovided  by  the  company,  as  one  of  the  necessities  of 
the  journey.     In  travel  by  rail  no  such  necessity  exists, 
and  therefore,  a  railroad  company  is  under  no  obliga- 
26  385 


§269 


LIABILITY  DURING  TRANSIT.  [PART  III. 


<ir...:, 

•;i:J 


tion  to  furnish  hospitals  on  wheels,  or  physicians  or 
nurses  to  attend  the  sick  on  their  journeys.  But  with- 
out hospitals,  and  without  physicians  and  nurses  of 
their  own,  still  much  can  be  done  to  alleviate  the  pains 
and  aches  of  a  sick  passenger.  While  the  train  is  in 
motion,  the  passenger  is  utterly  helpless  as  to  aid,  ex- 
cept from  those  on  the  train.  His  fellow  passengers 
owe  him  no  duty  except  humanity.  The  alternative  is 
presented  of  being  cared  for  by  his  fellow  [)assengers, 
by  the  company,  or  to  writhe  in  ])ain  and  sickness  until 
relieved  by  death  or  the  end  of  his  journey.  1\\  tak- 
ing passage  and  paying  his  fare,  the  relation  of  car- 
rier and  passenger  is  established  between  the  company 
and  himself,  and,  as  he  is  under  the  control  of  the  coni- 
pj'.uy  for  many  purposes,  and  debarred  by  the  rapid 
movement  of  its  trains  from  receiving  aid  from  the 
outside  world,  it  would  seem  to  follow  as  a  necessity 
of  the  situation,  that  those  who  have  received  his 
money,  and  are  thus  rapidly  transporting  him,  should 
assume  the  obligation  of  taking  reasonable  care  of  him 
in  case  of  sickness  while  on  the  train.  This  obligation 
is  on  the  company,  not  only  for  the  benefit  of  the  sick 
person,  but  also  for  the  comfort,  and  sometimes  the 
safety,  of  the  other  passengers.  A  sick  person,  by  his 
cries  and  moans,  nuiy  s<>  annoy  the  other  passengers 
as  to  require  his  removal  t()  a  separate  department,  or 
from  the  train.  In  case  of  smallpox  or  cholera,  or 
other  contagious  disease,  the  comfort  and  safety  of  the 
other  passengers  would  demand  the  early  removal  of 
the  afflicted  passenger  from  the  train.  The  company 
would  in  such  case  be  charged  with  the  duty  of  re- 
moval, and  reasonable  care  thereafter,  until  the  af- 
flicted person  could  be  otherwise  cared  for.  It  is, 
therefore,  clear  that  the  company  owed  a  duty  to  the 
sick  passenger,  and  was  under  obligation  to  ta,ke  rea- 
386 


CH.  XVII.]  LIABILITY  DURING  TRANSIT. 


§269 


sonable  care  of  him — such  care  as  was  fairly  practi- 
cable with  the  facilities  at  hand,  without  unreasonable 
delay  of  the  train,  or  discomfort  to  the  other  passengers. 
The  plaintiff,  assisting  in  the  care  of  such  sick  person 
by  direction  or  permission  of  those  in  charge  of  the 
train,  was  entitled  to  at  least  ordinary  care  on  their 
part  for  his  protection  from  injury." 

In  a  New  York  case,  a  woman  with  a  child 
in  her  arms,  while  alighting  from  a  car,  caught 
upon  a  nail  projecting  from  the  car  platform,  a  steel 
hoop  of  a  hoop-skirt  whicli  she  wore  as  part  of  her 
clothing,  and  was  thrown  upon  the  ground,  dragged 
some  difjtance,  and  injured.  The  court  said  that  if 
hoop-skirts  are  worn  by  such  passengers  as  the  road 
was  in  the  habit  of  conveying,  the  carrier  was  bound 
to  provide  for  the  safety  of  the  passengers  wearing 
that  kind  of  a  garment  with  as  much  caution  as  pru- 
dent and  cautious  persons  would  be  found  to  exercise.^ 


1  Panlin  r.  R.  Co.,  61  N.  Y.  621. 


387 


CHAPTER  XVIII. 


THE   passenger's   BAGGAGE. 


*.k-.,. 

rr"1 

•;.:<:;J 


••::l 


■»  ^ 

r-'  "!.■'! 

pi..'* 


Section  270.  Right  of  Passenger.to  Baggage, 

271.  Carrier  of  Baggage  an  Insurer. 

272.  What  is  Baggage. 

273.  Rule  in  last  Section  Modified  by  Usage. 

274.  Carrier  may  Refuse  to  Carry — when. 

275.  Effect  of  Failure  to  State  Kind. 

276.  Effect  of  Failure  to  State  Value. 

277.  May  Enquire  as  to  Contents  of  Trunk. 

278.  Knowledge  of  Carrier  tliat  Articles  are  not  Baggage. 

279.  Owner  of  Baggage  must  be  Passenger. 

280.  Need  not  Accompany  Baggage. 

281.  When  Liability  of  Carrier  Begins. 

282.  Before  Purchase  of  Ticket. 

283.  Baggage  left  witliout  Notice — Custom. 

284.  The  Baggeman  and  his  Powers. 

285.  The  Baggage  Clieck. 

286.  When  Liability  of  Carrier  Ends. 

287.  Liability  of  Carrier  as  Warehouseman, 

288.  As  to  Connecting  Carriers. 

289.  Where  Baggage  in  Custody  of  Passenger. 

§  270.  Big^ht  of  Passenger  to  Baggage.— The 
right  of  the  passenger  to  take  with  him  his  baggage 
is  one  which  was  accorded  by  the  carrier  himself  in 
the  earliest  era  of  the  business  of  carrying  passengers 
for  hire — a  liind  of  inducement  to  attract  travelers, 
like  an  easy  seat  or  a  warm  car.  As  it  has  always  been 
for  the  obvious  interest  of  carriers  of  passengers  to 
encourage  travel  by  permitting  the  pass^  ger  to  take 
with  him  what  he  may  require  for  his  personal  use  on 
his  journey,  this  privilege  of  a  reasonable  amount  of 
baggage  has  ripened  into  a  right  like  any  other  right 
388 


CH.  XVIII.] 


THE   passenger's  BAGGAGE. 


§271 


of  reasonable  accommodation.^  The  contract  to  carry 
the  passenger  includes,  as  an  incident  thereto,  the  car- 
riage of  his  baggage  without  any  other  agreement  and 
without  the  payment  of  any  additional  fare.- 

The  carrier  is  obliged  to  carry  only  a  reasonable 
quantity,  both  as  to  value  and  weight.  But  unless  he 
is  careful  to  restrict  his  liability  in  this  respect,^  or 
the  statutes  of  the  State  prescribe  a  limitation,*  his 
common  law  liability  as  to  quantity  or  value  is  unlim- 
ited, provided  the  things  are  baggage  within  the  legal 
meaning  of  that  term.'' 

§  271.  Carrier  of  Baggage  an  Insurer. — The  pol- 
icy of  the  law  made,  as  we  have  seen,  common  carriers 
insurers  of  the  goods  they  carried,  with  a  view  to  pre- 
venting fraudulent  combinations,  which,  if  the  law  had 


1  Niagara  Bk.  v.  Brown,  9  Wend.  116. 

2  Oruuge  Co.  Bk.  r.  Brown,  9  Wend.  86; 
24  Am.  Dec.  129;  Cimulen  etc.  R.  Co.  v. 
Hiirke,  13  Wend.  6U;  28  Am.  Dec.  489; 
Ilollistcri'.  Nowlen,  19  Wend.  2,sr.;  Cole 
r.  Goodwin,  19  Wend.  268;  Dexter  t'. 
Syracuse  etc.  U.  Co., 42 N.Y..S29;  Hawkins 
r.  noffman,  6  Hill,  586;  41  Am.  Dec.  767; 
Ciliisro  1'.  U.  Co.,  36  Barb.  661 ;  Needles  v. 
Howard,  1  E.  D.  Smith,  60;  Fairfax  v.  K. 
Co.,  37  N.  Y.  (S.  C.)  528;  Hopkins f.  West- 
cott,  6  Blatcht.  69;  Jordan  v.  K.  Co.,  5 
( 'iish. 69 ;  51  Am.  Dec  ■14 ;  Sasseen  r.  Clark, 
37  Ga.  260 ;  Woods  r.  Devm,  13  111.  747 ;  56 
Am.  Dec.  483 ;  Ind.  etc.  11.  Co.  r.  Cox,  29 
In<l.  KO;  95  Am.  Dec.  640;  Warner  v.  K. 
Co.,  22  la.  166 ;  92  Am.  Dec.  389 ;  Wilson  v. 
n.  Co.,  66  JMe.  60 ;  96  Am.  Dec.  4.W ;  Pardee 
i>.  Drew,  25  W^cnd.  459 ;  Powell  v.  Myers,  26 
Wend.  691 ;  Smith  t-.  U.  Co.,  44  N.  H.  325; 
Cinn.  etc.  n.  Co.  v.  Marcus,  38  HI.  219; 
Chicago  etc.  U.  Co.,  v.  Fahey,  52  111.  81 ;  4 
Am.  Rep.  587;  Perkins  v.  Wright,  37  Ind. 
27;  Piexotti  V.  McLaughlin,  1  Strob.  468; 
47  Am.  Dec.  663 ;  Miss.  etc.  R.  Co.  v.  Ken- 
nedy, 41  Miss.  671 ;  Hannibal  etc.  U.  Co.  v. 
Swift,12  Wall.  262;  The  Elvira  Harbeck, 
2  Blatch.  3.S6;  Hntchings  v.  R.  Co.,  25  Ga. 
61;  71  Am.  Dec.  156;  Merrill  r.  Grinnell, 
30  N.  Y.  574;  Hirechon  v.  Packet  Co.,  2 


J.   &   S.    621;   McGill  V.  Rowand,  3  Pa 
St.  451 ;  45  Am.  Dec.  664. 

3  Which  he  may  do  by  refusing  to  re- 
ceive it  if  over  weight  except  the  excess 
be  paid  for  or  by  proper  notices  as  to  tho 
limit  of  value. 

4  By  the  statutes  of  Illinois,  Texas, 
Pennsylvania,  New  York,  West  Virginia, 
Missouri  and  Kansas,  passengers  are  al- 
lowed baggage  to  be  transported  without 
other  charges  than  their  fare  to  the  ex- 
tent of  100  pounds.  In  Michigan,  Arkan- 
sas, Arizona  and  Virginia,  theli.uit  is  150 
pounds;  in  Nebraska,  200  pounds;  in  New 
Hampshire,  eighty  pounds.  2  Stira.  Am. 
St.  Law,  §§8832  (6.)  8852.  When  not  gov- 
erned by  statute,  tho  ordinary  allowance 
in  the  United  States  is  150  pounds.  In 
Europe,  it  is  much  less.  In  France,  the 
author  has  been  charged  for  extra  bag- 
gage over  60  pounds  and  in  Belgium  and 
Holland  over  30  pounds.  Only  New 
Hampshire  and  Pennsylvania,  have  by 
statute  limited  the  value  of  baggage  tor 
which  the  carrier  shall  be  answerable 
$100  in  K.  H. ;  $300  in  Pa.  2  Stim.  Am.  St. 
Law,  §  8852. 

8  Railroad  Co.  v.  Fnaloff  po$t;  Merrill 
r.  Grinnell,  3U  N.  Y.  618. 

389 


§271 


THE  passengek's  baggage. 


[part  III. 


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been  less  strict  in  this  particular,  would  doubtless  have 
arisen  between  the  carrier  and  the  robber;  and  the 
policy  of  the  law  continues  that  extensive  responsi- 
bility in  the  case  of  carriers  of  passengers  with  regard 
to  the  baggage  which  their  passengers  carry  with 
them.^ 

The  liability  of  a  carrier  towards  the  baggage  of  a 
free  passenger  is  only  that  of  a  gratuitous  bailee;-  like- 
wise, where  the  articles  carried  free,  as  baggage  of  a 
paying  passenger,  are  not  really  baggage.^  If  the  pas- 
senger has  more  baggage  than  the  carrier  allows  to  be 
carried  free,  and  pays  extra  on  it,  the  carrier  becomes 
liable  for  it  as  a  common  carrier  of  goods.^  IJut  it  is 
still  carried  as  baggage  and  not  as  freight,  and  if  tlie 
passenger  checks  the  box  or  trunk  as  extra  baggage, 
concealing  the  fact  that  the  articles  contained  in  it  are 
not  "baggage,"  the  carrier  will  not  be  liable  for  its  loss, 


1  Browne  Ciirr.  47fi:  'IcKeu  v.  (Iwen,  15 
Mich.  141);  Powell  r.  Myers,  26  Wend. 
591;  llollisterf.  Xowlen,  11)  Wend.  2H4; 
32  Am.  Uee.  453;  Cole  i-.  (ioodwin, 
lit  Wend.  2,')!;  32  Am.  Dec.  470; 
^Iiickliii  V.  Steamboat  Co.,  7  Abb.  N.  S. 
2.^S;  I.iiiiig  c.  Colder,  8  I'a.  St.  47;i;  49  Am. 
Dee.  r),i,{;  Homar  r.  .Alaxwell,  '.)  lliimpli. 
fi2n;  51  Am.  Dee.  f!82;  Nashville  ete.  U. 
Co.  I-.  Klliott,  1  Cold,  fill;  7H Am.  Deo.  Bdfi; 
Mobile  etc.  U.  Co.  r.  llo]  kins,  41  Ala. 
4(<6;  04  Am.  Dec.  G07;  Dibble  v.  Itrown, 
12  Ua.  217;  6fi  Am.  Dee.  4i',0;  Hannibal 
ete.  !{.  Co.  v.  Swilt,  12  Wall.  2G'2;  Fairlax 
V.  U.  Co.,5  Jones  &  S.  nifi;  The  Klvini 
Ihirbeek,  2  Hlateht.  XMi;  Glaseo  i:  M.  Co., 
36  Haib.  6,07;  Perkins  v.  Wright,  .S7  Did. 
27;  Sloore  v.  Steamer  Kveiiing  Star,  20 
La.  Ann.  402;  Wilson  r.  Chesapeake,  21 
Grntt.  654;  Orange  County  Bank  r. 
Brown,  9  Wend.  8.);  24  Am.  Dec.  129; 
Peixotti  f.  McLaughlin,  1  Strob.  4G8;  47 
Am.  Dec.  56,H;  Woods  v.  Devin,13  111.746; 
56  Am.  Dec.  483;  Hawkins  r.  IIotFnuin,  6 
Hill,  586;  41  Am.  Dec.  767;  Merrill  r. 
Grinuell,  ,S0  N.  Y.  594;  Chamberlain 
f.   Western   Trans.    Co.,   45   Barb.    218; 


Camden  etc.  U.  Co.  v.  P.urko,  l;i 
Wend.  611;  28  Am.  Dec.  488;  liayliss  v. 
Linton,  L.  IJ.  8  Com.  P.  .^45;  42  I,.. I. Com. 
P.  119;  28  L.  T.,  N.  S..  660;  Blossman  r. 
Hooper,  16  La.  Ann.  160;  Chica^'o  etc  U. 
Co.  r.  Fahey,52Ill.  81;  4  Am.  liep.  687; 
Dill  r.  It.  C..,7  Rich.  158;  62  Am.  Dee. 
407;  Nashville  etc.  U.  Co.  v.  Kllintt,  I  Cold. 
fill;  78  Am.  Dec.  50(1;  Baltimore  Packet 
Co.  r.  Smith,  2i  Md.  402 ;  87  .\ni.  Dee.  .•)75; 
Both  r.  K.  Co.,  34  N.  Y.  548;  90  Am.  Dec. 
736. 

2  I'lint  etc.  B.  Co.  v.  W^eir.  .37  Mich,  til ; 
26  Am.  Bep.  477. 

3  .Mich.  etc.  K.  Co.  r.  Carrow,  73  111.  343; 
24  Am.  Bep.  248;  Collins  r.  li.  Co.,  10 
Cnsh.  .506;  Stinson.  v.  B.  Co.,  98  .Mass.  8.3; 
Ailing  r.  B.  Co.,  126  Masr..  121;  Blumen- 
thal  V.  B.  Co.,  11  Atl.  Bep.  605. 

4  Sloman  i:  B.  Co.,  6  Hnn.  546;  67  N.  V. 
208;  Hellnian  c.  Holladay,  1  Woolw.  365; 
Stoneman  r.  B.  Co.,  52  N.  Y.  429-  Camden 
etc.  U.  Co.  r.  Baldanf,  16  Pa.  1 1.  67 ;  55 
Am.  Dec.  481 ;  (ilasco  v.  B.  Co.,  5r,  Harb. 
557;  Dibble  r.  Brown,  12  tia.  218;  .V.  Am. 
Dec.  460;  Hamburg  etc.  I'acket  Co,  v. 
Gattmuu,  127  III.  598;  20  N.  E.  Kep.  662. 


390 


CII.  XVIII.]  THE    passenger's  BAGGAGE. 


§272 


unless  he  knew  or  ought  to  have  known  from  its  ap- 
pearance, that  it  was  not  baggage.* 

§  272.  What  is  Bag{?age. — In  the  law  of  common 
carriers  of  passengers,-  the  term  "baggage"  means  such 
goods  and  chattels  as  the  convenience,  or  comfort  (a), 
the  taste  (/>),  the  pleasure  (c),  or  the  protection  {(J), 
of  passengers  generally  {(')  makes  it  lit  and  jjroper  for 
the  passenger  in  question  to  take  with  him  for  his  per- 
sonal use  (/),  according  to  the  habits  or  wants  of  the 
<lass  to  which  he  belongs  (r/),  either  with  reference 
to  the  period  of  the  transit  or  the  ultimate  purpose  of 
the  journey  (//). 

((/)  The  most  common  class  of  things  falling  under 
tlie  denomination  of  articles  of  convenience  and  com- 
fort, is  obviously  the  wearing  apparel  of  the  passenger, 
whether  ready  for  wear."'  or  simply  materials  for  cloth- 
ing, and  cloth  cut  into  jiatterns  for  garments.'*  And 
for  like  reasons,  a  gentleman's  dressing  case,'^  a  watch," 


1  Cinn.  etc.  U.  Co.  i:  MaiTtis,  3S  111.  220; 
Mich.  etc.  K.  Co.  r.  (X'liin,  5fi  Ul.  2!I3; 
Hamburg  Am.  Ciicket  Co.  c.  (iuttman, 
supra;  Itccliiinn  c.  Ilolitlay, .si/pca. 

2  It  is  said  in  a  frood  iiiaiiy  reported 
cases  tliat  it  is  a  dilliciilt  matter  to  delliie 
what  bagpape  is.  Uoror  on  Hailroads, 
Rives  no  <Ielinition  (eh.  XLIX,  p.  OSS); 
nor  does  Wheeler  on  CaiTiers,  nor  Ueil- 
(leld  on  Carriers  (eh.  VII),  nor  Urowne 
on  Carriers  (§1")!)).  Other  dellnitions  to 
be  foniid  in  the  text  l)ooks  are  as  follows : 
"All  articles  which  it  is  nsual  for  persons 
traveling  to  carry  with  them,  whether 
from  necessity,  or  foi  convenience  or 
amnsoment."  AnftcU  on  Carriers,  §  115. 
"Only  such  articles  as  a  traveler  usually 
carries  with  him  for  his  comfort  or  con- 
venience, both  dining  the  journey  and 
during  his  stay  at  the  place  of  his  desti- 
nation." Wood  on  liailway  I.aw,  §  401. 
".Such  articles  of  personal  convenience 
and  necessity  as  are  usually  carried  by 
passengers  for  their  personal  use  and  not 
as  merchandise."    Hutch.  ouCarr.,  §079. 


"Haggago"  ami  "luggage"  are  synony- 
mous. The  former  term  is  gei  erally 
used  in  the  United  States,  and  the  latter 
in  Kngland.  The  California  Code,  liow- 
ever,  adopts  the  English  expression. 
Cal.  Civ.  Codc,§  2180. 

3  Krooke  r.  Pickwick,  4  Bing.  218;  Mc- 
(Jill  v.  Howand,  3  I'a.  St  4-)l,  4.i  Am.  Dec. 
G.");  Railroad  Co.  c.  Fralolf,  100  V.  S.  24; 
Doyle  V.  Kiser,  G  Ind.  242;  Fairf.'ix  r.  i,'. 
Co  ,  73  N.  Y.  l76;Gloviuskyi;.  Cunard  Co. 
24  X.  Y.  (Supp.)  136. 

4  Van  Ilornr.  Kermit,  4  E.  D.  .Smith, 
4.')3;  Duffy  f.  Thompson,  4  K.  D.  Smith, 
178. 

«  Cadwallader  v.  U.  Co.,  9  Lower  Can. 
Uep.  2(19. 

fi  Merrill  v.  (^rinnell,  ?.0  N.  V.  02(1,  Mul- 
len, .1. ;  .Jones  v.  Voorhees,  10  Ohio,  415; 
Am.  Contract  Co.  v.  Cross,  8  Hush.  472 ;  8 
Am.  Uep.  471 ;  McCormick  i'.  U.  Co.,  4  E. 
I).  Smith,  181;  Coward  i:  U.  Co.,  10  Lea, 
225,  57  Am.  Uep.  22(1 ;  Walsh  r.  The  Wright, 
1  Newb.  Adm.  494. 

391 


rp 


WW 


§272 


THE   PASSENGKR'S  BAGGAGE. 


[part  III. 


•••■••:j 


nn; 


V 


an  opera  glass,*  or  a  telescope  of  a  traveler  by  sea,-  or 
gold  spectacles.^ 

(&)  Jewelry  naturally  falls  in  this  division,*  as  do 
other  articles  of  ornament,  such  as  the  swords  worn 
by  a  military  officer  when  in  full  dress.^ 

(c)  As  recreation  is  a  common  and  proper  object 
of  travel,  things  carried  for  that  purpose  are  clearly 
baggage,"  as  for  example,  books  for  reading  during  the 
journey ,''  or  the  guns  or  fishing  tackle  of  a  sportymau, 
or  the  easel  of  an  artist  on  a  sketching  trip.^ 

((/)  Articles  for  the  protection  of  the  traveler 
would  naturally  include  firearms,  such  as  pistols  and 
revolvers."  Protection  from  disease  and  accident,  as 
well  as  from  personal  injury  must  be  included.  Ileiue, 
money,  which  might  be  required  in  case  of  sickness  or 
accident  on  the  Avay,*"  and  medicines  which  he  may 
need  on  his  journey,  and  which  he  carries  in  his  trunk 
are  also  clearly  baggage." 

(c)  A,  for  example,  goes  to  New  York  from  his 
home  in  C  for  a  trip.  He  takes  no  baggage  with  him. 
While  in  New  York,  he  purchases  a  trunk  and  a  quan- 
tity of  new  clothes  for  himself.  On  his  return  to  C  with 
this  trunk  and  clothes  they  are  lost.     They  are  bag- 


1  Toledo  R.  Co.  r.  Hamniond,  33  Ind. 
370;  5  Am.  Kep.  221. 

2  Cadwalladpr  i-.  U.  ("o.  0  Lower  Can. 
Ri'I>.  lOG. 

3  Walsh  f.  The  '.VrigM,  1  Newb.  Adm. 
494. 

4  Brooke  v.  Pickwick,  4  IJing.  218;  Mc- 
Gill  r.  Rowand,  3  Pa.  St.  451 ;  itt  Am.  Doc. 
fi54 ;  Coward  v.  R.  Co.,  16  Lea,  225 ;  57  Am. 
Rep.  226;  McDougal  v.  Allen,  12 Low.  Can. 
Rep.  ,321 ;  Torpery  v.  Williams,  3  Daly  112 ; 
McCormack  r.  R.  Co.,  4  E.  D.  Smith,181 ; 
Rrutyf.R.Co.,.32U.C.Q.  H.  66.  Contra, 
Cadwallader  1'.  R.  Co.,9  Low.  Can.  Rep. 
1G9.  See  Nevins  r.  Steamboat  Co.,  4 
Bosw.  225. 

s  Merrill  t-.  Grinnell,  30  N.  Y.  577. 

392 


6  Wilkins  r.  Earle,  19  Abb.  1%;  Hnteh- 
inps  V.  R.  Co., 26  Pa.  64;  Maeklin  r.  N.  J. 
Steam  Co.,  7  Abb.  l^i-.  238. 

7  Doyle  t'.  Kiser,  6  Ind.  242. 
c  See  post  (ft). 

9  Woods  f.  Devin,  13  111.  786;  57  Am. 
Dec.  483;  Davis r.  R.  Co.,  22  III.  27S;  74 
Am.  Dec.  151;  Parmelee  i'.  Fischer.  22 
111.212;  74  Am.  Dec.  138;  Van  Horn  r. 
Kermit,  4  E.  D.  Smith,  454.  But  only  in 
reasonable  ((nantities— one  revoiviT 
wonld  ordinarily  be  enongh.  ChicagD  etc. 
R.  Co.  V.  Collins,  56  111.  212. 

10  Jlerrill  r.  Grinnell,  30  N.  Y.  594. 

11  In  Bomarr.  .Maxwell,  ii  Iltiiiiph.  620, 
51  Am.  Dec.  6«2,  there  is  a  clearly  errone- 
ous iutiniatiun  to  the  contrary. 


1 


CII.  XVIII.] 


THE  passenger's  Baggage. 


§272 


gage.^     The  rule  does  not  say  that  the  particular  pas- 
sen  j?er  shall  have  any  necessity  for  the  articles  but 
simply  passengers  of  his  habits  and  wants.     The  ar- 
ticles in  this  case  would  be  necessary  for  the  comfort 
of  men  in  his  walk  of  life;  the  clothes  purchased  did 
not   go   beyond  this.     Therefore,   they   are  baggage. 
For  a  like  reason,  a  pocket  flask  of  whisky  or  a  pair 
of  gold  spectacles  the  property  of  the  passenger  would 
be  none  the  less  baggage  because  he  did  not  drink 
spirits  or  did  not  need  glasses.     But  where,  in  another 
case,  among  a  passenger's  baggage  was  a  spring  horse 
Aveighing  seventy-eight  pounds  and  forty-four  inches 
high  standing  on  a  flat  surface — a  child's  toy;  this  was 
held  not  baggage.^     Things  that  only  an  eccentric  per- 
son or  a  crank  would  carry  with  him  are  not  baggage. 
As  said  in  the  last  case,  "a  person  might  travel  often 
and  never  see  an  article  such  as  this  carried  as  part  of 
the  personal  baggage  of  a  traveler;  it  is  clearly  excep- 
tional."   In  the  leading  American  case  on  the  subject 
of  baggage,^  the  Supreme  Court  affirmed  an  instruc- 
tion given  below,  that  baggage  could  not  include  "such 
unusual  articles  as  the  exceptional  fancies,  habits  or 
extravagancies  of  some  particular  individual  prompts 
him  to  carry."     Under  this  head  w^ill  fall  those  cases 
where  such  things  as  a  pair  of  handcuffs,*  silver  napkin 
rings,"  silverware,"  a  concertina,'  have  been  held  not 
to  be  "baggage." 

if)  As  the  things  carried  by  him  must  be  for  his 
personal  use,  it  is  clear  that  such  articles  as  a  lady's 
sack  and  muff,**  or  a  woman's  jew^elry,"  when  carried  in 


1  Dcxtor  V.  R.  Co.,  42  N.  Y.  326,  1  Am. 
Rep.  5,%. 

2  Ilndston  f.  R.  Co.,  36  L.  T.  Rep.  21.S. 

3  Railroad  Co.  t-.  Fraloff,  100  V.  S.  24. 

4  Bomar  i'.  Maxwell,  9  Humph.  620;  51 
Am.  Deo.  082. 

s  Chicago  etc.  R.  Co.  i\  Boyce,  73  111. 
610 ;  24  Am.  Rep.  268. 


6  Bell  V.  Drew,  4  E.  D.  .Smith,  69. 

7  Brutey  v.  R.  Co.,.S2  U.  C.  Q.  B.  6S. 

8  Chicago  etc.  R.  Co.  v.  Boyce,  73  111. 
510;  24  Am.  Rep.  261. 

0  Met/,  r.  R.  Co.,  85  Cal.  .S29;  24  Pac 
Rep.  610. 


393 


m 


§272 


THK    PASSENGEIl's  BAGOAOE.  [PAIIT  III. 


Zt,.  "^ 
•,.:CJ 


r'" 


■;,:i» 


-<»r.^ 


the  trunk  of  a  male  passenger,  could  not  be  deemed 
his  ''baggage."  Nor  couhl  presents  for  friends,'  nor 
baggage  of  another  person  not  a  passenger.-  So, 
where  a  passenger  from  Liverpool  to  London,  took  with 
him  in  a  trunk,  six  pair  of  sheets,  six  pair  of  blankets, 
and  six  quilts,  having  given  up  his  residence  in  Can- 
ada, these  articles  being  intended  for  the  use  of  his 
household  when  he  should  have  provided  himself  with 
a  home  in  London,  the  things  were  held  not  baggage.' 
Therefore,  merchandise  or  articles  carried  for  business 
or  trade  are  not  baggage,'  nor  samples  of  goods  which 
he  is  engaged  in  selling  carried  in  the  trunk  of  a  com- 
mercial traveler,"''  nor  masquerade  costumes  taken  by 
the  passenger,  a  costumer,  to  be  let  for  hire,"  nor  stage 
properties,  costumes,  paraphernalia  and  advertising 
matter  of  a  theatrical  company  packed  in  trunks,"  nor 


1  Dexter  v.  Xi.  Co.,  42  N.  Y.  326;  1  Am. 
lU'i).  527;  Thulonic,  5  Itlntch.  5.T2;  Nov- 
ins  ti.  |{.  Co.,  4  llosw.  H'.'5.  In  Dexter  v. 
U.  Co.,  42  N.  Y.  32r>.,  the  cniii-t  held  that 
it  was  proper  to  inelmh'  within  tlie  terui 
"baKj.tiiKe,"  suits  of  c'lotliing  and  other 
artieh'S  wliich  the  passenger  might  have 
purcliased  while  on  his  journey  for  the 
use  of  members  of  his  family  at  home. 
This  nilinic  has  been  critieised,  and  is 
clearly  wrong,    .''ee  Uorer  Kailroads,9;t0. 

2  Andrews  v.  U.  Co..  23  S.  W.  Hep.  1040 
(Tex.). 

3  Maerow  r.  R.  Co.,  1..  R.  G  Q.  n.  fil2. 

*  Weed  V.  U.  Co.,  1'.)  Wend.  5.!"; 
.Smith /'.  R.  Co.,44  N.  U.  .■!2.5;  Pardee  v. 
Drew,  2.')  Wend.  400;  Hawkins  v.  Hoff- 
man, fi  Ilill,  5H!t;  Davis  V.  n.  Co.,  lo  How. 
I'r.  ;i:i2;  Warner  f.  West.  Trans.  Co.,  5 
Robt.  4'.t5;  Richards  i-.  Westeotl,  2  liosw. 
601;  Rlanehard  v.  Jones,  .S  liarl).  .'iSO; 
Chamberlain  v.  West.  Trans.  Co.,  45 
Rarl).  22;i;  Untchings  r.  R.  Co.,  2")  (Ja.  01 ; 
71  Am.  Dec.  Ifid;  Weeks  v.  R.  Co.,  7  Dun. 
600;  Davis  r.  R.  Co.  22  III.  278;  74  Am. 
Dec.  Wl ;  Dunlap  v.  Int.  Co. ,08  .Mass.  .S71 ; 
Spooner  r.  R.  Co.,  23  Mo.  (App.)  403;  Col- 
lins r.  R.  Co.,  10  Gush.  506;  Cahill  r.  R. 
Co.,  1,S  Q.  B.  (N.  S.)  818;  Great  North.  R. 
Co.  V.  .Shepherd,  8  E.x.  30 ;  IJelf ast  R.  Co.  r. 
Keys,  9  H.  L.  Cas.  556 ;  Mich.  Cent.  R.  Co. 

304 


f.  Carrow,  73  111.  348;  24  Am.  Rep.  248; 
Haines  r.  R.  Co.,  20  .Minn.  Ifin;  43  Am. 
Rep.  100;  Itlnmantle  r.  R.  Co.,  127  Mass. 
3S2;  34  Am.  Rep.  370;  (Irant  v.  Newton, 
1  E.  1).  Smith,  Oi;  liliimenthal  r.  R.  Co., 
U  Atl.  Hep.  605;  Collins  v.  M.  Co.,  10 
Cush.  .".06;  Dibble  r.  lirown,  12  (ia.  217; 
Stimsonr.  R.  Co.,98  Mass.  83;  Smith  v. 
R.  Co.  44  N.  H.  325;  Hell  i:  Drew.  4  i:.  D. 
Smith,  50;  The  Ionic,  5  r.latch.538;  Fair- 
fax V.  R.  Co.,  73  N.  Y.  167. 

.'.  Hawkins  v.  Hollman,  6  Hill,  680;  41 
Am.  Dec.  767;  I'iiikerton  c.  Woodward, 
.33  Cal.  003;  Wilkins  v.  Karle,3  Robt.  309; 
Slomau  r.  R.  Co.,  13  Hnn.  ,')47;  Davis  i\ 
R.  Co.,  10  How.  .S;i2;  Stimson  r.  R.  Co., 
98  Mass.  84  ;  03  H.  D.  140  ;  Chamberlain  r. 
Trans.  Co.,  45  Barb.  227 ;  Richards  r. 
We^tcott,-!  Uosw.  6U4 ;  (Jrant  r.  Newton, 
1  K.  D.  Smith,  99;  .Jordan  v.  R.  Co.,  5 
Cnsh.  72;  Ulumantlc  v.  R.  Co.,  127  Mass. 
324;  Ailing  v.  K.  Co.,  126  Ma>s.  121 ;  4U 
Am.  Rep.  667;  "fnn.  Co.  v.  .Miller,  35 
Ohio  St.  641 ;  35  Am.  Rep.  G'20;  Texas  etc. 
R.  Co.  V.  Capps,  18  Cent.  L.  .1.  211 ;  2  Tex. 
Civ.  Cas.  34;  Gnrney  c.  R.  Co.,  14  N.  Y. 
(Siipp.)  321;  69  Dun.  025. 

0  Michigan  etc.  R.  Co.  r.  Oehm,  .56  111. 
293. 

7  Oakes  V,  North  I'ac.  U.  Co.,  26  Pao. 
Ucp.  230. 


CH.  XVIII.]  THE   passenger's  BAGGAGE. 


§271 


money,  except  what  is  required  for  the  expenses  of  the 
journey,  aceording  to  iff)  po-st.^  Therefore,  while  a 
reasonable  quantity  of  money  for  the  puri)ose  of  the 
expense  of  the  journey  may  be  carried  by  the  passen- 
ger in  his  trunk  as  well  as  on  his  pi'rsou,-  yet  more  than 
this,  as  for  example,  |11,250,  in  bills,  in  a  traveler's 
trunk  is  not  baggage,''  nor  is  money  in  a  trunk  to  pay 


1  Orantre    County    IJk.    v.    Hrown,    0 
W'vnd.  88;  24  Am.   Dec.   129;  .Johnson  v. 
,«toni',  n  riiiin|ili.  42(1;  IIicox   r.    It.  Co.. 
31  Conn.  281;  Hii  Am.  Dec.  14;);  Tonx'V  ''• 
Williams,   H  Ualy,    li;2;    Doyli;   r.  Key- 
6rr,  t!  Inil.  242;   Whitmori'  r.  Conliuf,  20 
Mo.  l:t;  I'fistcr  i:  U.  Co.,  70  Cal.   Hill;  r,<) 
Am.    Kcp.   404;    .lolinson    f.    .'^tonc,    11 
Hiimiih.  40'.l;  Mad  Hivcr  K.  Co.  r.  Kullcv, 
20Oliio,.ilH;  Wooils  r.  Dfvin,  VA  Ul.  747; 
36  Am.  I)cc.4(a;  WaMi  v.  The  Wi(.'ht,  1 
Ni'wb.  Ailm.  4;i4;  .Jordan  r.  U.  Co., SCiish. 
6il;  ."il  Am.  Dec.  44;  Davis  c.  1{.  Co  ,22111. 
278;  lioyli-  r.  Kcysor,  ti  Ind.  242;  Weed  c. 
K.  Co.,  r,"  WiMid.  "i.t7;  ."Mcnill  c.  (iriiimdl. 
SON.  V.  Oil,  ovt'iTolin;;  contrary  opniions 
in  Hawkins  i\  Uoirmann,  0  lliU,  .'iHii,  and 
other  Sew  York  cases;  Dntfy  r.  Tliniiip- 
son,  4  K.  1).  Smith,  17h  ;  Orant  r.  Newton, 
1  K.  D.  Smith,  95;  IJoniar  v.  Ma.xwell,  9 
Hnmph.  V,2i;  .ll  Am.  Di'C.  G82;  Weekcs  v. 
K.  Co.,il  Ilnn.  fir.'.l;  llntchinfjs  r.  K.  Co., 
25  (ia.   (11.     Disioriidut    Cases.  — iivnnl  r. 
Newton,  1  IC.  I>.  .Sniilh,  95;  Ilickox  r.  K. 
Co.,  .HI  ((inn.  281;  K)   Am.   Dec.  281.    In 
the  latter  case  it  was  held  that  a  jiassen- 
ger  cannot  recover  for  moui'y  canied  in 
his  trnnU  lor  the  jmrjiose  of  purchasiniit 
clothinfT  at  the  jilace  to  which  he  is  going. 
It  wonld  surely  he  baggage  if  the  money 
was    taken   to  purchase  clothing  neces- 
sary  lor   Ills   journey,  for  whether  the 
passenger  took    tlic   clothing   itself   or 
money  to  buy  it  with,  as  he  neeiled  it, 
the  result  wotild  be  the  same.    And  the 
report  does  not  show  that  this  was  not 
the  case. 

2  It  is  safer  there,  and  a  prudent 
man  may  well  place  it  in  his  trunk 
rather  than  increase  the  danger  of  vio- 
h'nce  to  his  person  Ijy  pickpockets  and 
robbers  on  the  cars.  Slerrill  r.  Grin- 
nell,.!ON.  Y.  020;  .Jordan  t:  K.  Co.,5  Cush. 
69;  51  Am.  Dec.  44;  HI.  Cent.  1!,  Co.  v. 
Copuiuud,  24  111.  3o2i  Davis  i:  11.  Co.,  22 


111.278;  74  Am.  Dec.  151,  is  n  discordant 
case.    Here    the  passenger  r.taiuu'<l   to 
recover  for  $4;{9  contained  in  his  trunk 
on  his  trip  by  rail   from  New   York  to 
Chicago.    The  court  said:     "Unless  it 
was  in  gold  or  silver,  a  trunk  is  no  place 
to  carry  it  in  railroad  traveling,  even  if 
v.anted    for   traveling   expenses,  for  it 
cannot  readily  be  got  for  use."     lint  the 
coui'l  was  of  the  opinion  both  that  the 
sum    was   nureasonabh',   and    that   the 
l)laintifl's  story  was  a  lalscone,  he  hav- 
ing at  lir^t  made  no  claim  that  there  was 
money  in   his  trunk.    The  case  must  hi: 
consideriMl  as  having  been  decided  on 
the  latter   ground    rather  than  on  the 
other.     For  having  regard  to  the  ulti- 
mate purpose  of    a  journey   from   New 
York  to  Chicago,  It  could  hardly  be  said 
that  the    sum    was  unreasonable.    And 
the  case  is  overruled  in  111.  Cent.  i;.  Co. 
V.   Copeland,  24  111.  ;«2;  76  Am.  Dec.  749. 
The  same  is  true  of  a  wat('li.    I  none  case 
it  is  said  that  the  traveler  i.s  guilty  ot  no 
negligence  in  placing  a  valuable  uatch 
in  a  trunk  for  tise  at  the  end  of  his  jour- 
ney.   .Jones  c.  Voorhees,  ]U(Jhio.  14j.  In 
another  that  a  watch   may  well  be  re- 
garded as  saler  in  the  trunk  than   on  llie 
person,  when  the  traveler  on  his  jouiiiey 
is  compelle(l  to  mingle   with   and  pass 
through  large  crowds  ol  persons  gener- 
ally  assembled    about  railro.id  di'pots. 
Am.  Cont.  Co.  c.  Cross,  8  Mush,  572;  8.Vm. 
Kep.  47 ;  and  see  Coward  r.  It.  Co.,  10 1.ea, 
225;  57  Am.  Heji.  220;  Merrill  r.  Grinnell, 
.SON,  Y.  520.  Mullen  .J.;  Jones  r.   Voor- 
hees, 10  <Jhio,145;  McCormack  r.  U.  Co., 
4  K.  D.  .Smith,  181  ;\Val>h  r.  The  Wright,  1 
Newb.  Adm.  424  ;  Discardant  Cases.-  ISo- 
niar  v.  Jla.vwell,  9  Humph.  G20 ;  51   Am. 
Dee.  082,  no  reason  given.    See  Miss.  etc. 
11.  Co.  r.  Kennedy,  41  .Miss.  671. 

a  Orange    County    l!k.    r.    Urown,    9 
Wend.  85;  24  Am.  Dec.  129. 

395 


W"  '^ 


§272 


THE  passexgeb's  baooaoe.         [paut  iir. 


«•'"  '-'1 


rr'1 


-:;1 


a  creditor  at  the  place  of  destination  or  to  invest  tlicrc." 
(//)  In  the  leadinj;  case  in  tlie  Supreme  Court  of 
the  United  States,  a  Russian  woman  of  wealtli  tnivel- 
in«^  for  pleasure  on  this  continent,  curried  with  her  six 
trunks  which  contained,  anionj-:  other  articles  of  cloth- 
ing, rare  laces,  which  she  was  accustomed  to  wear 
when  attending  dinners,  balls  and  receptions.  These 
laces  were  found  by  the  jury  to  be  worth  |10,0()0.  It 
was  held  that  they  were  baggage."  A  German  gentle- 
man, traveling  from  Germany  to  California,  has  in  his 
trunk  six  dozen  shirts,  it  being  shown  that  in  Germany 
it  is  the  custom,  on  account  of  the  washing  of  clotlics 
b(Mng  done  less  frequently  than  in  America,  for  per- 
sons like  the  passenger  to  keep  on  hand  large  (pianti- 
ties  of  linen;  the  shirts  are  "baggage.""*  A  poor  man 
traveling  with  his  wife  and  family,  has  in  his  trunks, 
a  bed,  pillows,  bolsters  and  bed  quilts.     These  are  bag- 


gage.^ 


Story's  definition  of  baggage  as  "such  articles  of  ne- 


1  MfiTill  !•.  firinnrll,  30  N.  Y.  010,  Do- 
nio,  C.  J.;  Jonliiii  v.  H.  Co.,  5  Cash.  69, 
KlctcluT,  J. 

2  Hiiilroad  Co.  r.  Kniloff,  10  IJlutchf.  ir  ; 
100  C.  S.  24. 

3  Mi'iTiU  f.  Grinnoll,  30  N.  Y.  t>;S,  In 
this  case  it  is  said:  "It  woulil  Ijccrinaiiv 
sevLTu  to  limit  the  quantity  of  clotl^iiiT  ii 
yount,'  lady  goingto  a  watcrinfr  placi'  ,n.,y 
carry  as  baggage  to  that  necessary  to  en- 
able her  to  wear  to  and  at  her  plaee  ni 
destination.  She  recjuires  according  to 
the  views  of  necessity  and  in  conformity 
to  the  habits  and  tastes  of  the  society  in 
which  she  moves,  as  much  as  woul<l  bo 
required  by  another  and  less  fashionable 
[lersou  in  a  year."  See  Coward  v.,li.  Co., 
16  Lea,  228;  68  Am.  Uep.  226. 

<  Onmit  V.  Henshaw,  35  Vt.  60.^ ;  84  Am. 
Dec.  646.  The  court  said  that  poor  per- 
sons commonly  take  such  articles  with 
them  as  baggage— their  poverty  makes  it 
necessary;  such  things  are  frequently 
about  all  they  have  that  would  make 
baggage.    They  obtain  cheap  lodging,  it 

396 


might  be  aoded,  at  their<h'stinatiiin,and 
cheaper  nites  of  fare  when  traveling'  at 
niglit  by  their  supplying  themselves  with 
their  bedding,  etc.  Such  is  the  cii'-tiiin 
•in  tlie  second  class  sleeping  ears  in  Uk; 
nited  States.  And  see  Flirsclivoa  c. 
I'acketCo.,2.Iones&  S.  521.  There  is  a 
<iis(;ordant  cas(!  in  Massachusetts,  where 
it  was  held  that  proprietors  of  an  ocfiiii 
steamship  are  not  liable,  under  tliclr  or- 
dinary contract  as  common  carriers  to 
transport  a  passenger  and  her  l)a;.'i!age, 
for  the  loss  of  a  feather  bed,  <'arri<'d  by 
the  passenger,  but  not  intendeil  for  use 
on  the  voyage.  (Jonnolly  v.  \VarriMi,  106 
Mass.  146.  The  court  went  astray  on  tlie 
idea  that  articles  to  bo  baggage  must  be 
required  for  personal  use  on  the  voyage. 
A  steerage  passenger  on  a  vessel  is  Ijo'.ind 
to  provide  her  beilding  for  the  voyage, 
that  bidding  constitutes  a  part  of  her 
baggage.  Ilirschson  c.  Haiiihiirg  racket 
Co.,  supra;  (jlovinsJiy  v.  Cunard  Co.,  24 
N.  Y.  (Supp.)  636. 


CH.  XVIII.]  THE    passenger's  BAOOAOE. 


§272 


cessity  or  eonvouionco  as  aro  usually  carried  by  pas- 
scnj-crs  for  their  personal  use,"  will  ilearly  not  do. ' 
The  character  aud  quantity  of  articles  taken  by  pas- 
senfjjers  for  tlK'ir  personal  use,  are  almost  ae  varied 
as  their  countenances.  There  is  no  settled  usage 
in  this  country  or  perhaps  in  any  other  as  to  what 
travelers  shall  carry  for  their  jwrwonal  use.  One 
man  j^'ets  along  with  very  little;  the  hotels  at  which 
he  intends  to  stop  on  his  way,  he  looks  to  to  supply  him 
with  all  he  wants;  another  man  must  carry  with  him 
his  own  brush  and  comb,  razors  and  toilet  conven- 
iences; one  man  prefers  to  finish  his  journey  in  the 
suit  he  starts  in;  another  requires  frequent  changes  of 
clothing.  Hence,  the  test  must  be  not  whether  or  not  tlie 
articles  claimed  to  be  baggage  are  usually  carried  by 
passengers,  but  whether,  according  to  the  habits  and 
wants  of  persons  of  like  condition  to  Iiim,  the  particu- 
lar things  would  be  tit  and  proper  for  their  personal 
use. 

(h)  Articles  for  use  at  the  end  of  a  journey,  or 
during  a  temporary  stay  at  a  particular  place,  are  as 
properly  baggage  as  those  actually  used,  oi'  intended 
to  be  used  in  transit.^  Thus,  the  gun  and  case  of  a 
sportsman  on  a  shooting  tour,''  or  the  fishing  apparatus 
of  one  on  a  fishing  trip,*  or  the  easel  of  an  artist  on 
a  sketching  trip,'*  are  certainly  baggage.  A  leaves  his 
home  in  the  town  of  C  to  take  up  his  residence  in  New 
York.  He  takes  with  him  his  ordinary  wearing  ap- 
parel, none  of  which  he  intends  to  use  on  his  journey. 
This  is  baggage."     So,  A,  traveling  by  rail  at  night  has 


1  SCO  Dibble  V.  Brown,  12  Cia.  217 ;  56  619;  Vuu  Uorn  v.  Korn.it,  4  K.  D.  Smith, 
Am.  Tec.  460.  *^'^- 

2  Toledo  K.  Co.  v.  Hammoncl,  83  Ind.  *  Id. 
37<1  '  ■^^• 

SMiicrow  V.  U.  Co.,  G  Q.  H.  612,  Cock-  8  Dexter  r.  11.   Co.,  42  N.  Y.  320;   1  Am 

burn,  J.;   Merrill  v.  Urinnell,  30  N.  Y.  liep.  627. 


§272 


THE    PASSEXOKIt's  BAGGAGE. 


[part  III. 


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r" 


an  opera  glass  in  his  trunk.  This  is  baggage.'  A 
student  on  the  way  to  college,  carries  in  his  trunk,  man- 
uscript books  which  it  is  necessary  for  him  to  study 
there.  These  are  baggage.-  A  commercial  traveler 
has  in  his  valise  a  "price  book"  of  the  articles  he  sells, 
which  he  is  called  upon  to  use  from  time  to  time  in  the 
business  for  which  he  is  journeying.  This  is  baggage.'' 
In  this  case,  the  "price  book"  was  a  thing  of  personal 
use  and  convenience,  according  to  the  wants  of  the 
particular  class  of  travelers  to  which  the  passenger  be- 
longed, and  was  taken  with  him  as  well  with  reference 
to  the  immediate  necessities  of  his  journey,  as  to  the 
ultimate  purpose  of  it.  The  passenger  is  a  traveling 
<lentist ;  in  his  trunk  are  his  dental  instruments.  These 
are  baggage.^  The  passenger  is  a  working  watch- 
maker and  jeweler.  In  his  trunk  are  the  tools  of  his 
trade;  the  object  of  his  journey,  is  to  work  at  his  trade 
at  his  destination.  The  tools  are  baggage;"'  and  the 
same  would  be  true  of  any  journeyman  mechanic,  car- 
rying his  tools  in  his  trunk."'  A  is  a  surgeon  in  the 
army,  traveling  with  his  troop;  his  surgical  instru- 
ments are  baggage.^  A  lady,  traveling  for  pleasure, 
has  in  her  trunks  valuable  laces  which  she  wears  at 
dinners,  balls  and  receptions,  at  the  different  places 
she  visits.     These  ar<»  baggage.'* 


1  Toledo  etc.  U.  Cn.  r.  Hammond,  33 
Ind.  879;  6  Am.  Hep. 221  "Articles,"  said 
the  ronrt,  "for  use  as  baftgajie  at  tlie  e.id 
of  the  Journey  or  during  n  temporary 
stay  at  a  particular  plaee  are  as  properly 
baKKatfo  as  those  actually  used  iu  the 
transit." 

2  Hopkins  V.  Wcstcott,  6  Blatchf.  64. 
In  this  e,ase  it  was  said:  "With  a  lawyer, 
(foin^' to  a  distant  place  to  attend  court; 
with  the  author,  proceeding  to  his  puh- 
lishers;  with  the  lecturer,  traveling  to 
the  place  where  his  engagement  is  to  he 
fullllleil,  manuscripts  often  form,  though 
a  small  yet  uu  indispensuhle  part  of  his 
baggage.  •    *    *  They  are  indispensi'hle 

398 


to  the  object  of  his  Journey."  Contra, 
I'helpsf.  11.  Co.,  19  J.  ^cott,  N  S.  11.0,  19 
V.  H.  N.  S.  821. 

1  (Jleason  r.  Trans.  Co.,  H2  Wis.  <.5;  U 
Am.  liep.  716. 

4  Hrock  r.  Gale,  14  Fla.  .V23;  U  Am. 
Uep.  H,58. 

6  Kansas  City  etc.  R.  Co.  r.  MoiTison,H4 
Kan.  ,51)2 ;  55  Am.  Kep.  254  ;  9  I'ac.  Uep.  225. 

«  I'orter  v.  Ilildebraud,  14  I'a.  St.  112; 
Davis  V.  U.  Co.,  10  How.  I'r.  330. 

7  Hannibal  etc.  K.  Co.  r.  Swift,  12 
Wall.  252. 

H  Railroad  Co.  v.  Fruloff,  10  lilutclif. 
16;  100 U.S.  24. 


M 


ClI.  XVIII.] 


THE    PASSE^TGER  S  BAGGAGE. 


§273 


It  is  not  limited  to  wliat  the  passenger  may  require 
(luring  a  particular  part  of  liis  journey,  to  which  the 
line  of  one  class  of  carriers  extends,  but  embraces  the 
whole  of  his  joumej'.*  A,  for  an  illustration,  intend- 
ing to  go  from  Germany  to  California,  buys  a  ticket 
from  Liverpool  to  New  York,  on  the  defendant's  line. 
His  baggage  includes  such  things  as  are  necessary,  not 
alone  between  Liverpool  and  New  York,  but  during 
the  whole  of  his  contemplated  journey,  including  stop- 
pages which  he  may  make  tii  roiitr.- 

§  27:5.    Rule  in  Last  Section  Modified  by  Usage.— 

The  usages  and  customs  of  carriers  and  travelers  must 
be  consi<lered  in  ascertaining  what  is  baggage,  and  it 
is  clear  that  the  legal  meaning  of  the  woru  "baggage'' 
nuiy  be  enlarged  or  restricted  by  such  usages  or  cus- 
toms. The  free  carriage  of  baggage,  as  we  have  seen, 
arose  from  the  custom  of  the  carrier,  and  not  from  any 
law  or  rule  of  public  policy  requiring  baggage  to  be 
carried  free.  It  has  been  often  held  that  in  determin- 
ing what  kind  of  goods  a  carrier  is  obliged  to  carry 
and  is  responsible  for  as  a  common  carrier  and  an  in- 
surer, the  custom  of  the  carrier  is  looked  to,  and  it 
being  proved  that  it  was  his  custom  to  receive  and 
carry  certain  i)roperty  for  hire,  his  calling  as  a  com- 
mon carrier  of  such  property  becomes  established,  and 
his  extraordinary  liability  as  such  attaches.^  There- 
fore, if  it  should  appear  that  things  not  heretofore  con- 
si<lered  by  the  courts  a«  "baggage,"  have,  by  the  usage 
of  the  time,  of  the  carrier  and  of  hi»  patrons,  come  to  be 
considered  as  baggage,  they  will  be  so  treated.* 


1  Merrill  i-.  Grinnell,  30  X.  Y   B74. 

2  -rrill  r.  Griniu'll,  30  N.  Y.  574. 
s  Luwson  UsiifTos  &  Customs,  78. 

4  Dilibler.  Hrown,  12  (ia.  217;  56  Am. 
Doc.  400  111  Switzi'rlancl  Miiriiu!  Ins.  Co.  t'. 
Louisville  I'tc.  K.  Co.,  13 lut.  Itev.  Rec.  342 ; 


131  U.  S.  440,  the  circuit  court  charged 
the  jury  that  "li.iRfta^c"  dot's  not  include 
articles  of  merchandise  tor  sale  or  for 
use  as  samples,  and  not  designed  for  the 
use  of  the  passenger,  and  that  if  the  pas- 
senger has  such  .articles  chcckeO  and  re- 

399 


■ 


•^ 


§275 


THE  PASSEXGKK  a  UAGGAGE. 


[part  III. 


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§  274.     Carrier  May  Refuse  to  Carry,  When.— 

A  carrier  may  refuse  to  receive  for  transportation  with 
the  passenger  what  is  not  "baggage";  a  railroad,  for 
example,  may  refuse  to  receive  on  its  passenger  train 
property-  other  than  baggage,  for  the  contract  to  carry 
the  passenger  implies  an  undertaking  to  carry  as  well 
only  what  is  "baggage"  within  the  rules  heretofore 
given.^  But  if  a  railroad  receives  for  transportation 
in  the  cars  of  its  passenger  trains,  property  of  the 
passenger  not  baggage,  it  assumes  the  liability  of  a 
common  carrier  of  merchandise.  If  the  property 
which  the  passenger  offers  is  not  represented  by  him 
to  be  baggage  and  not  so  packed  as  to  assume  that 
appearance,  and  it  is  received  for  transportation  on  the 
passenger  train,  the  carrier  is  justly  held  to  the  same 
responsibility  as  if  the  goods  had  been  shipped  by  h'w 
freight  train,  for  he  has  the  same  right  to  charge  for 
their  carriage.^ 

§  275.     Effect  of  Failure  to  State  Kind.— On  the 

other  hand,  a  carrier  is  under  no  obligation  to  inquire 
of  the  passenger  whether  or  not  a  trunk  or  valise  pre- 
sented by  the  passenger  to  be  carried  as  baggage,  con- 
tains only  articles  of  the  kind  falling  under  the  de- 

Ue  has  a  right  to  assume 


nomination  of  "baggage." 

ceived  by  the  carrier  as  l)agpiiffi',tlic  car- 
rier will  not  be  liable  for  lliom  if  lost  or 
injnred,  unless  it  was  infuniieil  or  was 
presumed  to  have  known  that  the  arti- 
cles were  nierchandise,  or  unless  it  was 
the  established  custom  or  usage  of  the 
defendant  to  receive  and  transfer  them 
as  baggage,  or  unless  they  were  lost  by 
the  gi'oss  negligence  of  the  defendant. 
After  a  verdict  and  judgment  for  the 
plaintiff  the  case  was  alUrmed  by  the 
Supreme  Court  of  the  United  States. 
In  Massachusetts,  (Stimson  t'.  U.  Co., 
98  Mass.  83;  Ailing  v.  U.  Co.  126  Mass. 
121),  inactions  to  recover  for  travelers' 
samples  the  court  has  rejected  evidence 

400 


of  a  general  custom  among  merchants  to 
sell  goods  by  sample  carrieii  by  tlioir 
agents  with  their  baggage  and  checked 
as  such  and  a  "general  custom  of  rail- 
roads in  general  and  tlie  defendant  rail- 
road in  particular  to  receive  and  check 
for  the  same  in  the  same  manner  as  or- 
dinary baggage."  These  decisions,  ignor- 
ing as  they  do  the  effect  of  usage  and 
custom  npou  the  liability  of  carriers,  are 
clearly  wrong. 

1  Norfolk  K.  Co.  v.  Irvine,  6  S.  K.  Uep. 
(5.32.  7  Id.  2;« ;  Pfister  v.  B.  Co.,  70  Cal. 
169;  no  Am.  Rep.  404;  11  Pac.  Uep.  fiSG. 

2  Hannibal  etc.  K.  Co.  v.  Swift,  12  Wall. 
262. 


I 


CH.  xviii.]        THE  passknger's  baggage. 


277 


that  it  contains  nothing  but  "bagjiage,"  and  the  pas- 
senger, by  presenting  the  trunk  or  valise  and  saying 
nothing,  impliedly  represents  that  it  contains  only 
baggage.^  By  his  silence  he  practices  a  fraud  upon  the 
carrier.- 

«^  276.    Effect  of  Failure  to  State  Value Where 

the  carrier  has  notified  the  iKissenger  tlmt  he  will  not 
be  liable  for  baggage  beyond  a  certain  sum  unless  the 
true  value  is  stated,  the  carrier  will  be  discharged 
from  his  extraordinary  liability  if  the  passenger  either 
refuses  to  disclose  the  value  or  fails  to  do  so,  or  by  any 
artifice  evades  inquiry'  as  to  its  true  value.''  Hut  where 
the  carrier  makes  no  such  inquiry,  and  the  passenger 
does  not,  by  any  act  or  artifice  of  his,  mislead  the  car- 
rier as  to  the  true  value  of  the  baggage,^  his  mere  fail- 
ure to  disclose  it  is  not  such  a  fraud  on  the  carrier 
as  will  release  him  from  liability.^ 

§  277.     3Iay  Enquire  as  to  Conte    ts  of  Trunk.— 

A  carrier  may,  as  a  condition  precedent  to  his  contract 
for  the  transportation  of  a  passenger's  baggage,  re- 
quire information  from  him  as  to  its  value,  or  kind, 
and  demand  (>xtra  compensation  for  any  excess  beyond 
that  which  he  may  reasonably  demand  to  be  trans- 


1  ITaines  i-.  R.  Co.,  29  Minn.  IfiO;  43  Am. 
Rt'p.  I'M;  Uiimrliic.vs  r.  IVitv,  IH  S.  C. 
Hi-p.  711  (U.  S.);  Uiiilroad  Co.  f.  Keys  !> 
H.  I,.  Cas.  .WG;  Midi.  Cent.  U.  Co.  r. 
Carrow,  7.S  111.  .•i4S;  24  ,\ni.  Kep.  24S;  Ca- 
hill  f.  K.  Co.,  10  C.  n.  (N.  S.)  1,54,  Hylos, 
.1.;  Diinlap  r.  .'stoani  Co.,  98  Muss.  ,S76; 
cojitra,  Kutor  v.  R.  Co.,  1  Biss.  .S."),  which 
mtistbeconsideri'd  as  overruled  by  Hum- 
phreys r.  Perry,  sitpra. 

2  Mich  Cent.  R.  Ca.,  v.  Carrow,  ante; 
Chicapo  ete.  R.  Co.  v.  Marcus,  ,SH  ni.  21!); 
niiinieiithal  r.  R.  Co.,  11  Atl.  Rep.  fio.'j 
(Me.) ;  Ilellniau  v.  Uollidav,  1  Woohv.  .WR. 
lu  the  (."an-ow  ease  it  was  said :  "  Whether 

27 


any  fraud,  in  fact,  was  intended,  it  is  not 
necessary  to  inquire.  The  transaction 
was  fraudulent  in  law  and  this  is  sufll- 
cient,  by  all  the  a  ithorities,  to  avoid  any 
contract  wlietlier  express  or  implied. 
The  fact  that  appellee  offered  as  com- 
mon banRaRe  merchandise  of  extraor- 
dinary value  is  a  lepal  fraud  such  as  will 
excuse  the  perl'ornianee  of  a  contract." 

3  Railroad  Co.  v.  Kraloff,  100  U.  S.  24. 

4  For  examples  of  this  see  the  ca'^es  of 
cnrriade  of  (-oods  so  packed  as  to  mislead 
the  carrier  as  to  their  true  value. 

»  Kailroad  Co.  v.  Kraloff,  100  U.  S.  24; 
Brown  v.  I{.  Co.,  83  Pa.  St.  316. 

401 


r'^-'t^ 


278 


THE  passenger's  BAGGAGE.  [PART  IIT. 


ported  as  baggage  under  the  contract  to  carry  the  per- 


son. 


,^"   111* 


".x:i 


".:J 


(Hit*''' 


§  278.  Knowledge  of  Carrier  that  Articles  are 
Not  Baggage. — The  carrier's  knowledge  that  the  ar- 
ticles presented  to  him  are  not  baggage,  may  be  adiKil 
or  const rKctivc.  Where  the  carrier's  agent  is  expressly 
notified  of,  or  actually  knows  the  real  nature  of  the 
property,  there  can  be  no  question  that  the  carrier  will 
be  liable  for  the  articles  just  as  though  they  were 
''baggage,"  if  after  such  knowledge  he  chooses  to  ac- 
cept them  as  baggage.-  Thus,  where  the  plaintilT  gave 
his  trunk  and  a  package  of  carpeting  to  a  baggage 
master,  and  received  a  check  for  the  trunk,  but  was 
told  that  no  check  was  necessary  for  the  carpeting, 
and  that  it  would  go  safely  without  it,  and  the  carpet- 
ing was  afterwards  lost  in  the  transit,  it  was  held  that 
the  carrier  was  responsible  for  the  loss.^  WIumc  a 
railroad  receives  the  trunk  of  a  passenger,  after  be- 
ing advised  that  it  contains  articles  of  merchandise 
in  addition  to  ordinary  baggage,  and  receives  for 
its  transportation,  because  of  extra  weight,  a  sum  in 
addition  to  the  ordinary  fare,  in  case  of  failure  to  de- 
liver, it  is  liable  for  the  contents  as  baggage.^ 

Constructive  knowledge  will  arise  where  the  articles 


1  Railroad  Co.  V.  FralofT,  100  U.  S.  24; 
Norfolk  etc.  R.  Co.  f.  Irvint',  5  .S.  E.  Hop. 
632 ;  7  M.  233  (Va.) 

2  MUM.  Cent.  R.  Co.  t:  C.irrow,  73  111. 
348;  24  Am.  Rep.  248;  Collins  v.  R.  Vo.,  10 
Cush.  oOi'),  Slo!n»n  v.  R.  Co.,  r,7  N.  Y.  208; 
Millard  v.  R.  Co.,  8f.  N.  V.  44! ;  Tex.  etc. 
R.  Co.  V.  Capps,  2  Tex.  Civ.  ( 'as.  .34 ;  Jacobs 
I'.  Txnt,  .33  Fed.  Rep.  412;  Iloeger  r.  R. 
Co.,  63  Wis.  100;  53  Am.  Kep.  271 ;  Ross  r. 
R.  Co.,  4  Mo.  (App.)  682;  Oakes  r.  I{.  Co., 
26  I'ac.  Rep.  230;  Fort  Worth  etc.  I{.  Co. 
r.  Rosenthal,  29  S.  \V.  Rep.  109  (Tex.)  "1 
think  it  safe  to  say  that  if  the  currier  knew 

402 


or  had  notice  of  the  character  of  the 
goods  taken  as  biisjraixe  and  still  umlcr- 
took  to  transpiirt  them,  he  is  li;ilil(!  for 
their  loss,  althouKh  they  are  not  travel- 
ers' bapnatJe."  I'eckhain,  J.,  in  Slone- 
nian  r.  R.  Co.,  62  N.  Y.  429 ;  Jacobs  v.  Tntt, 
33  Fed.  Rep.  412;  St.  I.oui.s  etc.  U.  Co.  r. 
IJcrry,  30  .S.  W.  Rep.  464  (Ark.). 

3  Minter  v.  R.  Co.  41  Mo.  603. 

4  I'erley  r.  R.  Co.,  r^l  N.  Y.,  374;  Strouss 
V.  R.  Co.,  17  Fed.  Kep  209;  Dibble  r. 
Brown,  12  C  a.  217;, 56  Am.  Dec.  460;  C;  in 
den  etc.  K.  Ci>.  f.  Ualdauf,  16  I'a.  .St.  •7; 
65  Am.  Dec.  481. 


CH.  XVIII.]  THE  passenger's  BAGGAGE. 


§278 


are  so  packed  that  their  nature  is  discernable,*  or  the 
carrier  has  notice  of  facts  which  the  jury  believe  was 
sufiSeiont  to  inform  him  of  the  nature  of  the  articles. 
In  a  New  York  case,  the  plaintiff's  son,  a  lad  eighteen 
years  of  age,  was  employed  by  him  as  traveling  agent 
to  sell  goods  by  sample.  He  had  two  large  trunks, 
containing  the  samples,  different  from  ordinary  travel- 
ing trunks,  and  had  a  valise  for  his  personal  baggage. 
He  delivered  the  trunks  to  a  baggage  master  at  a  rail- 
road depot,  and  when  asked  where  he  wanted  them 
checked  to,  replied  that  he  did  not  then  know,  as  he 
had  sent  a  dispatch  to  a  customer  at  F,  to  know  if  he 
wanted  any  goods;  if  not,  he  wanted  them  to  go  to  R, 
where  he  expected  to  meet  some  customers.  Soon 
after,  he  had  them  checked  to  IJ,  paying  .f2,  and  re- 
ceiving a  receipt  ticket  f  :r  them,  headed  "receipt  ticket 
for  extra  baggage,"  etc.  They  were  not  weighed,  and 
no  cvlilcnce  was  given  as  to  any  regulation  of  the  com- 
pany in  reference  to  charging  extra  compensation  for 
passengers'  baggage.  It  was  held  that  the  evidence 
justified  the  submission  to  the  jury  of  the  question  of 
notice  as  to  the  contents  of  the  trunks.- 

The  mere  fact  that  the  trunk  presented  is  such  a 
trunk  as  is  usually  carried  by  commercial  travelers, 
is  not  such  knowledge,    for  the  baggageman  has  the 


1  Mich.  Cent.  K.  Co.  v.  Carrow,  n  111. 
748;  -24  Am.  Rep.  248;  Chicago  etc.  It.  Co. 
r.  Conklin,  3a  Kas.  55;  Great  North.  K. 
Co.  r.  Shepherd,  8  W.  U.  &  G.  .TO;  Hutlcr 
t>.  U.Co.,.S  K.D.Smith, 571.  In  Dakota  the 
plaint!  IT,  having  bought  tickets  of  defend- 
ant railroad  company  for  himself  and 
family,  pointed  out  to  the  baggage-mas- 
ter their  baggage,  consisting  of  three 
trunks  aad  two  boxes,  and  they  were  all 
chcckeu  except  one  box,  a  small,  rough, 
pine  box,  such  as  is  used  for  mercandise. 
This  box  was  not  checked  for  the  solo 
reason  that  it  had  no  handle  or  place  to 
Which  a  check  conld  be  fastened,  bat  the 


agent  received  it,  saying  that  he  would 
place  it  in  the  baggage-car,  and  that  it 
would  go  just  as  safe.  Plaintiff  made  no 
misrepresentations,  and  was  not  asked  as 
to  contents  or  value.  The  court  held 
that  from  the  nature  of  the  article  the 
baggage-master  should  have  inquired  as 
to  its  contents,  and  having  accepted  it 
without  doing  so  the  carrier  was  liable 
for  it  as  "  baggage,"  though  it  did  not 
contain  baggage.  Waldron  v.  U.  Co.,  1 
Dak.  .^51 ;  4r,  N.  AV.  Uep.  450. 

2  Sloman  r.  Great  Western  R'y  Co.,  C7 
N.  Y.,  208;  reversing  G  IIuu,  540. 

403 


§280 


THE  passenger's  BAGGAGE. 


[part  III. 


.*  fill 


r 


Si-': 


right  to  rely  on  the  implied  representation  that  it  con- 
tains only  "baggage,"  and  is  not  obliged  to  make  in- 
quiry as  to  its  contents.*  The  fact  that  a  box  is  pre- 
sented and  not  a  trunk,  is  not  notice  to  the  carrier 
that  it  contained  merchandise,  though  as  a  matter  of 
fact,  baggage  is  oftener  carried  in  trunks  than  in  boxes, 
jind  »"'erchandise  more  frequently  in  boxes  than  in 
tr'  In  an  English  case,  the  passenger  carried 

wi.i,  .A.ix  d  box  covered  with  black  leather;  on  the  top 
his  name  ^\as  printed  in  white  letters,  and  on  the  sides 
thc^  ^^rM  ";'  '^•"  It  was  held  that  this  was  not  no- 
tice to  the  iiAvl  -y  tliat  the  box  contained  merchandise.'' 

§  279.     Owner  of  B.agfgage  3Inst  be  Passenger.-— 

Because  the  carriage  of  baggage  is  incidental  to  the 
carriage  of  the  passenger,  the  owner  of  the  property 
must  stand  in  the  relation  of  passenger  to  the  carrier 
in  order  to  ren«ler  the  latter  liable  as  such  carrier  of 
baggage."*  If  the  carrier  should  be  informed  that  tlie 
owner  was  not  a  passenger  and  did  not  intend  to  be- 
come one,  he  would  be  presumed  to  accept  the  property 
as  freight  and  wf)uld  be  liable  for  it  as  a  common  car- 
rier of  goods.'"'  But  if  the  baggage  was  received  in  the 
expectation  that  the  owner  was  to  become  a  passenger 
and  he  did  not  do  so,  then  the  carrier  would  not  be 
responsible  for  it  as  baggage,  though  he  would,  of 
course,  as  a  bailee,  be  liable  for  a  negligent  loss  of  it." 

§  280.  Need  Not  Accompany  Baggage.— But  if 
the  owner  as  a  passenger,  is  unable,  to  the  knowledge 
of  the  carrier,  to  accompany  his  baggage  on  the  same 
conveyance,  this  fact  will  not  prevent  the  liability  of 


1  Mich.  etc.  K.  Co.  r.  Oarrow,  7.^  111.  .S48 ; 
24  A.  U.  248;  Uumphroys  v.  Cerry,  l.S  S.  0. 
Rep.  711. 

2  Belfast  etc.  R.  Co.  v.  Keys,  9  H.  L. 
Cas.  6S6. 

404 


■1  Onhill  I'.  K.  Co.,  l.S  C.  It.  (N.  S.)  818; 
10  Iif.  154. 

*  rintch.  r.irr.,§  701. 

»  Id.    Wilson  V.  U.  Co.,  port. 

«  Fairfa.x  v.  K.  Co.,  07  N.  V.  11 ;  Collins 
V.  R.  Co.,  10  On sh.  606. 


I 


on.  XVIII.]        THE  passenger's  baggage. 


§281 


the  carrier  for  the  baggage  to  attach.     "The  owner," 
as  well  said  in  an  Iowa  case,  "if  on  the  train,  does  not 
and  is  not  required,  and  very  often  as  is  known,  will 
not  be  allowed  to  e.xercise  any  control  over  his  baggage 
after    being    placed    in    the    appropriate    car,    and 
whether  on  the  same,  the  preceding  or  the  next  train, 
if  the  baggage  is  sent  pursuant  to  an  agreement,  and 
as  part  of  the  consideration  moving  from  the  company 
for  the  fare  paid  by  the  passenger,  we  cannot  see  why 
the  same  rules  as  to  care  and  diligence  do  not  apply. "^ 
If,  however,  the  passenger  has  left  his  baggage  behind, 
without  any  agreement  with  the  carrier  that  it  is  to  be 
forwarded  to  him  as  baggage,  and  the  carrier,  after  he 
has  transported  its  owner  as  a  passenger,  is  entrusted 
with  his  baggage  to  be  carried  to  him,  he  will  not  carry 
it  in  the  character  of  baggage,  but  as  freight,  and  he 
may  charge  for  its  carriage  as  such.^     The  carrier  may 
claim  com}>ensation  in  advance,  or  he  may  postpone  his 
claim  until  the  delivery  and  rely  on  his  lieu  or  on  the 
personal  responsibility  of  the  owner.       Therefore,  it 
makes  no  difference  that  nothing  was  said  at  the  time 
it  v.as  delivered    about  compensation,  the  rule  of  re- 
sponsibility is  the  same,  the  actual  liability  for  the 
freight  and  tlie  lien  of  the  carrier  for  its  payment  con- 
stituting the  consideration  for  the  undertaking." 

§  281.    When  I^iability  as  Carrier  Begfins.— The 

liability  of  the  carrier  commences  when  the  baggage  is 


1  Warner  v.  R.  Co.,  22  In.  1fir,;!12  Am. 
Dec.  SS'.i;  LoK.in  v.  U.  Co.,  U  Hob.  I.ii.  24 ; 
is  Am.  Doc.  199. 

2  Wilson  f.R.  Co.,  57  Me.  138;  2  Am. 
Hep.  2r,;  Ciriiffam  v.  U.  Co.,  f.7  Mi'.  234; 
Wilsou  V.  U.  Co.,  56  Me.  60;  96  Am.  Dec. 
486. 

3  The  Klvira  Hancock,  2  niatchf.  .S39. 
"There  is  no  evidence  that  the  plaintiff 


claimed  it  -ihonM  be  carried  withont  com- 
pensation as  passenRer  bappaKO  or  that 
the  (lofindaiit  aprct'il  so  to  transfer  it. 
It  mattered  not  whether  it  was  a  trunk 
or  a  barrel  of  Hour.  It  was  received  to 
be  safely  carried.  It  was  known  to  be 
thetrunk  of  a  iiassenper  who  had  previ- 
ous!) passed  over  the  road."  Wilsou  v. 
R.  Co.,  67  Me.  138 ;  2  Am.  Kep.  26. 

405 


^^ 


I 


§  282 


THE  FASSEJS^GER's  BAGGAGE.  [PART  III, 


delivered  to  it  for  carriage.'  This  may  be  before  the 
time  when  the  train  is  scheduled  to  start.  But  the 
railroads  of  the  country  do  not  hold  themselves  out  as 
store  houses  of  baggage,  and  the  public,  it  has  been 
said,  have  no  right  to  assume  that  they  are  such.- 
Travelers  have  no  right  to  send  their  baggage  to  the 
baggage  rooms  or  stations  to  be  kept  in  store  or  for 
an  unreasonable  length  of  time  awaiting  a  train.  The 
liability  of  the  railroad  as  a  carrier  commences  a  rea- 
sonable time  prior  to  the  starting  of  the  train  on  which 
it  is  to  go;''  9:30  at  night  for  a  4:25  morning  train 
has  been  held  a  reasonable  time.*  So  is  11  a.  m.  for  a 
train  at  3  p.  m.  ;^  so  is  12  o'clock  noon  for  a  train  at 
3:30  p.  m.« 

§  282.  Before  Purchase  of  Ticket.— A  railroad 
might  adopt  a  regulation  that  a  person  intending  to 
become  a  passenger  shall  purchase  a  ticket  or  pay  his 
fare  before  the  company  will  accept  his  baggage  for 
transportation,  and  such  a  rule  would  be  perfectly 
valid,  and  a  passenger  could  not  compel  the  railroad 
to  accept  his  baggage  until  the  ticket  had  been  pur- 
chased, or  the  fare  paid.  But  if  the  carrier  has  no 
such  regulation,  or  if,  notwithstanding  such  rule,  ho 
receives  a  person's  baggage,  relying  upon  his  purchas- 
ing a  ticket  or  taking  passage  on  the  train  on  which 


1  Hickoxt'.  R.  Co.,  31  Conn,  281 ;  83  Am. 
Dec.  14  3;  .Jordan  r.  K.  Co.,  5  Cnsli.  69; 
81  Am.  Dec,  44 ;  Logan  v.  Ponchartrain  K. 
Co.,  11  Kob.  24;  43  Am.  Doc.  I<t0;  Dickon- 
sonr.  Winchester,  4  Oush.  114;  50  Am. 
Dec,  "GO;  Dibble  V.Brown,  12  Ga.  217;  56 
Am.  Doc.  460. 

2  Lake  Shore  etc.  R.  Co.  v.  Foster,  104 
Ind.293;  64  Am.  Rep.  .3.30. 

3  Id.    nickox  r.  R.  Co.,  supra. 

4  Ijike  Shore  etc.  R.  Co.  v.  Foster,  104 
Ind.  293 ;  64  Am.  Rep.  330 ;  4  N.  £.  Rep.  20. 

5  Hickox  V.  R.  Co., ««pro. 

406 


6  Rogers  r.  R.  Co.,  56  N.  Y.  620.  "In 
order  to  render  u  carrior  lial)l(!  tor 
the  loss  of  bappagc,  it  is  siidiciont  to  show 
a  delivery  of  the  batrgaire  to  liiiii,  and 
from  the  time  of  such  dolivory,  al- 
thongh  some  time  in  advance  of  the 
time  whon  it  will  start  tipon  its 
transit,  the  carrior  is  liable  for  it  as  a 
commim  carrior  and  not  as  a  warehouse- 
man and  if  it  is  lost  before  (ho  tiiiio  tor  it 
tostartnpon  its  transit, the  carrior  is  lia- 
ble." Wood's  Railway  Law,  §  404.  The 
same  lantniapo  is  nsod  in  Mr.  Wood's 
notes  to  Browne  on  (.'arriers,  p.  Via. 


CH.  XVIII.]  THE  passenger's  BAGGAGE. 


§283 


the  trunk  is  to  go,  lie  will  be  liable  as  an  insurer  for  the 
loss  of  such  property,  whether  the  loss  occurs  before 
or  after  the  departure  of  the  train,  or  before  or  after 
the  purchase  of  a  ticket  or  tlie  payment  of  fare.'  The 
fact  that  the  person  after  having  liis  baggage  checked 
may  change  his  mind  as  to  the  journey  and  withdraw 
it,  does  not  alter  the  case.  If  a  man  delivers  his  bag- 
gage to  the  carrier,  and  it  is  accepted  by  the  carrier, 
but  before  he  buys  his  ticket  it  is  stolen,  the  carrier 
will  be  liable,  even  though  the  intending  passenger,  on 
account  of  the  loss  of  his  baggage,  gives  up  the  jour- 
ney.^ It  is  generally  laid  down  that  the  carrier  is  lia- 
ble as  such  for  all  baggage  left  with  its  agents  by  the 
passenger  with  the  intention  of  proceeding  with  it  by 
the  next  train  or  conveyance.^ 

§  283.    Baggage  Left  Without  Notice.— Custom. 

— Though  notice  to  the  carrier  that  the  baggage  has 
been  left  on  his  platform  would  ordinarily  be  neces- 
sary, yet  custom  may  do  away  with  this  requisite. 
Thus,  in  an  Iowa  case,^  the  plaintiff,  intending  to  take 
an  early  morning  train,  sent  her  trunk  the  night  be- 
fore by  a  drayman  to  the  depot  who  left  it  in  the  wait- 
ing room,  and  as  there  were  no  employes  of  the  defend- 
ant about  the  premises,  no  notice  thereof  was  given 
to  anyone.  That  night  the  trunk  was  destroyed  by 
fire.  It  was  shown  that  it  was  customary  for  travelers 
to  leave  their  baggage  in  this  way  for  the  morning 
train.  A  judgment  having  been  obtained  in  favor  of 
the    railroad,    the    Supreme   Court   on   appeal,    said: 


3  Lake  Shore  etc.  I{.  Co.  v.  Foster,  104 
Ind.  2'.l.'<;  54  Am.  Rep.  .!l!i;  4  X.  K.  Rep.  20; 
Green  v.  U.  Co.,  38  Iowa,  100;  41  Iowa, 
410;  Woods  V.  Devin,  13  111.  747 ;  56  Am. 
Dec.  483. 

*  Green*.  R.  Co.,  ««prn;  Camden  etc. 
E.  Co.  V.  Belknap,  21  Wend.  364;  Rogers 


t'.  R.  Co.,  1  Thomp.  &  C.  396;  66  N.  T.620. 

3  Camden  et<;.  R.  Co  r.  Belknap,  21; 
Wend.  354;  Hicko.-c  t'.  R.  Co.,  supra; 
Green  v.  R.Co.,  38  Iowa,  100;  41  Iowa,  410. 

4  Green  v.  R.  Co.,  38  Iowa  100;  41  Iowa 
110. 

407 


f 


^1^" 


§284 


THE  passenger's  BAGGAGE.  [PART  III. 


<ir,..r„ 


••:J 


w  ■ 


"Upon  evidence  of  this  character,  it  was  proper  that 
the  facts  should  have  been  left  to  the  determination 
of  the  jury,  whether  there  had  been  a  delivery  of  tjie 
property  within  the  rules  above  nnnounced, — whctlK'i' 
a  course  of  business,  a  custom,  had  been  established, 
to  the  effect  that  a  delivery  of  baggage  at  the  station 
house,  without  notice,  was  regarded  by  defendant  as 
a  delivery  to  its  servants,  and  whether  plaintiff's  trunk 
was  received  under  this  custom."  After  a  second  trial 
a  judgment  against  the  railroad  was  affirmed. 

§  284.  The  Bagsaffeitiaii  and  His  Powers.— The 
convenience  of  travelers  requires  that  they  shall  have 
an  ()i)portunity  of  delivering  baggage  at  any  reasonable 
time  before  the  departure  of  the  train,  and  it  is  tliere- 
fore  the  carrier's  duty  to  keep  an  agent  at  stations 
to  receive  and  take  care  of  such  baggage.^  Such  agent 
may  be  one  appointed  by  the  carrier  or  the  agent  of 
another  carrier,  but  who  has  been  permitted  by  the 
former  to  receive  baggage  for  it.-  Though  the  car- 
rier has  a  regulation  that  no  baggage  shall  be  checked 
until  a  ticket  is  purchased  by  the  passenger,  it  will  be 
liable  if  the  baggageman  receives  it  without.  "The 
baggageman,"  it  was  said  in  one  case,  "is  the  agent 
of  api)ellant,  with  general  authority  to  receive  the  bag- 
gage of  persons  intending  to  go  upon  the  company's 
trains.  He  was  so  held  out  to  the  public.  That  was 
the  general  scope  of  his  business,  authority  and  agency. 
Whatever  he  did  within  tie  general  scope  of  his  agency 
was  binding  upon  the  company,  unless  the  owner  of 
the  baggage  in  some  way  had  notice  of  limitations  im- 
posed upon  his  general  authority.""'  The  same  con- 
clusion  was   reached   where  a    railroad    had   a    rule 


1  Jordan  t>.  U.  Co.,  B  Cnsh.  69;  61  Am. 
r)ec.  44 ;  Ilickox  v.  K.  Co.,  31  Conn.  2S1 ; 
81  Am.  Dec.  14.'). 

408 


2  Jordan  f.  R.  Co.,  mpra. 
•t  F-ake  Shore  etc.  R.  Co.  v.  Foster,  1(U 
Ind.  29,'? ;  54  Am.  Rep.  ,S25 ;  4  N.  K.  Rep.  20. 


oil.  XVIII.]  THE  PASSENQEU'S  BAGGAGE. 


8  285 


against  carrying  live  animals  as  baggage,  but  tlie  bag- 
giigcnian  received  a  dog  of  a  passenger;'  or  where  the 
baggageman  allowed  goods  to  be  checked  as  baggage 
which  he  knew  was  not,-  and  where  he  received  a  trunk 
as  baggage  wlikh  he  knew  contained  a  large  sum  of 
mouey.^ 

§  285.  The  Baggagfc  Check.  —The  custom  of  check- 
ing does  not  affect  the  character  of  the  delivery.  The 
check  is  a  receipt,  and  may  be  given  at  any  time;  it  is 
not  the  contract,  but  simply  is  evidence  of  the  owner- 
ship, delivery  and  identity  of  the  baggage.'  Tlie  lon- 
tract  to  carry  the  passenger,  as  we  have  seen,  includes 
a  contract  to  carry  his  baggage,  and  the  liability  of 
the  carrier  being  fixed  at  the  time  the  passenger  buys 
his  ticket  or  pays  his  fare,  cannot  be  altered  by  any 
conditions  which  may  be  printed  upon  the  check."  The 
check  is  simply  a.  token. 

The  production  of  a  check  is  prima  facie  evidence  that 


1  rantling  r.  11.  Co.,  54  Mo.  .S8S;   14  Am. 

a  Sloiiiiin  V.  R.  Co.,67N.  Y.  208;  Tex. 
etc.  U.  Vo.  V.  Capps,  2  Civ.  Cas.  Ti'x.  Si; 
Mintcr  r.  U.  Co.,  41  Mo.  (503.  "The  rail- 
road  having  placed  the  baKfra.ci'inastt.'r 
in  its  ))afr;rapi'-rooiii  liolils  out  to  tin-  piil)- 
licdiat  ho  lias  authority  to  make  arraiipe- 
ment-i  as  to  what  sort  of  bafiKage  shall 
be  carried."  Stronss  r.  R.  Co.,  17  Fed. 
Uep.  211.  Contra,  IJlnmantlo  r.  R.  Co., 
127  Mass  322 ;  34  Am.  Rep.  37G. 

S  i^U  Lonis,  etc.  R.  Co.  r.  Berry,  30  .S. 
M'.  l!op.  704  (Ark.). 

•«  In  a  Connecticut  case  plaintiff  took 
his  tnink  to  a  railroad  station  at  U  a.  ni. 
and  reijncsted  that  it  mipht  ho  checked 
for  the  next  train  to  R  at  3  p.  ni.,but 
being  informed  by  the  agent  that  they 
did  not  check  bapfrape  until  l.'i  minutes 
before  the  tram  left,  he  left  the  tnink 
with  the  ajrent,  and  at  the  proper  time 
called  for  and  obtained  a  check,  and 
went  himself  by  the  .same  train.  When 
he  received  the  trunk  again,  some  money 
and  clothing  had  been  taken  from  it,  but 


it  did  not  appear  whether  it  was  done 
while  the  tnink  was  lying  at  llii'  station, 
or  after  it  left.  Held,  that  llio  railroad 
received  the  trunk  when  lirst  delivered 
for  transportation,  and  not  for  storage, 
and  that  its  liability  commenced  a-3 
soon  as  it  was  delivered  to  their  airent. 
Uickox  V.  R.  Co.,  31  Conn.  281 ;  83  Am. 
Dec.  143. 

8  See  as  to  limiting  liability  by  notices 
on  "baggage  checks,"  §150,  Dii'i-  !!.  ('o.,7 
Rich.  (L.)  ins  ;  02  Am.  liec.  40:.  r.i  several 
States  — Massachusetts,  Veiii..i,i'.,  New 
York,  Xew  .Jer-^ey,  Illinois,  Michigan, 
Missouri,  North  Carolina,  Texas,  Cali- 
fornia, Nevada,  Idaho,  South  Carolina, 
Mississippi,  New  Mexico,  Ctah  and  Ari- 
zona—it is  re(|uircd  by  .statute  that  every 
railroad,  when  recpU'sted  to  do  so,  .shall 
give  checks  to  passengers  for  their  bag- 
gage, and  redeliver  the  same  to  the  pas- 
sengers upon  the  surrender  of  such 
checks.  Stinison  Am.  Stat.  L.  Vol.  2;  see 
Najac  I'.  R.  Co.,  7  Allen,  329;  «3  Am.  Dec. 
686. 

409 


§280 


TlIK  PASSRNQEU'S  BAOGAGK. 


[I'AUT  III. 


the  owner  was  a  passeiij^er,  and  that  the  carrier  re- 
ceived the  i)laintin"s  bagj'aj^e;'  a  truiilv  being'  the  usual 
means  of  conveying'  baggage,  it  is  evidence  of  the  de- 
liverv  of  a  trunlv.- 


C  •  -^ 

v'  -^ 


Vn.'  ■  ■•' 

""X  '■ 


§280.  When  Liability  of  Carrier  Einls.— The 
liability  of  the  carrier  continues  until  the  baggage  lias 
been  delivered  to  the  passenger  or  is  ready  for  delivery 
to  him  at  the  end  of  the  carrier's  route.''  It  continues 
while  it  is  in  the  carrier's  depot  awaiting  a  connect- 
ing carrier,  on  a  through  contract  of  carriage.'  Upon 
the  arrival  of  the  vehicle  at  the  passenger's  destina- 
tion, the  carrier  should  have  the  baggage  upon  the 
platform  at  the  usual  place  of  delivery,  so  that  the 
owner  may  receive  it;''  and  when  this  is  done,  it  is  the 
duty  of  the  passenger  to  call  for  it  within  a  reasonable 
time."  What  is  a  reasonable  time  will  frequently  de- 
pend on  the  facts  of  the  case;  but  the  facts  being  un- 
disputed, it  is  a  question  of  law  for  the  court.^  The 
''reasonable  time"  is  generally  at  once,  upon  his  leaving 
the  train  ;^  though  of  course  it  would  not  be  required 
of  him  that  he  should  expose  his  person  to  injury  or 
endanger  his  safety  in  the  crowd  in  the  attempt  to 
immediately  designate  and  claim  his  baggage." 


1  Kas.  City  U.  Co.  i-.  Montolle,  in  Kas. 
119;  Davis  r.  U.  Co  ,  22  111.  27H;  74  Am. 
Dec.  151;  Uickox  t».  R.  Co.,  ai/pra ;  Chi- 
cago etc.  R.  Co.  r.  Clayton,  78  111.  Gli;; 
Davis  V.  R.  Co.,  10  How.  Tr.  330 ;  111.  Ci'iit. 
R.  Co.  I'.  CopclanJ,  24  111.  3.32;  70  Am. 
Dec.  749;  111.  Cent.  R.  Co.  r.  Clayton,  78 
111.  618;  Check  f.  R.  Co.,  10  IFow.  Pr.  330; 
Atchison  etc.  R.  Co.  v.  Brewer,  20  Kas. 
GfiO. 

2  Dill  V.  R.  Co.,  7  Rich  (L.)  158;  fi2  Am. 
Dec.  407. 

3  Oiiiniit  V.  llenshaw,  85  Vt.  60.^;  84 
Am.  Dec.  C47. 

4  Onimitr.  Henshaw,  »«pra. 
i  Oaiinit  r,  Hensbuw,  supra. 

410 


?  Onimit  v.  llenshaw,. 'if)  Vt.fio.l;  Roth  v. 
R.  Co.,  34  N.  Y.  B48;  Warner  r.  R.  Co.,  22 
la.  IGfi;  02  Am.  Dec.  389;  Curtis  r.  U.  Co., 
74  N.  Y.  116;  .SO  Am.  Rep.  271 ;  Neviiis  r. 
Hay  State  etc.  Co.,  4  Bosw.  2'2,'i;  Gilliouly  r. 
New  York  etc.  Steam  Co.,  1  Daly  197; 
I'atscheider  r.  R.Co.,  L.  R.  3  Ex.  153;  Ca- 
rey V.  11.  Co.  29  Rarb.  G35. 

7  Chicago  etc.  R.  Co.  f.  Boycc,  73  111.  .'510 ; 
24  Am.  Rep.  208;  Roth  v.  R.  Co.,  34  N.  Y. 
548;  90  Am.  Dec.  7.30;  Gilhooly  r.  Steam 
Nuv.  Co.,  1  Daly,  197;  Curtis  v.  R.  Co.,  49 
Barb.  148. 

8  Ouimit  V.  Henshaw,  35  Vt.  605. 

»  AngcU  Carr.,  §  114;  Ouimit  r.  Hen- 
shaw, supra. 


CII.  XVIII.]  THE  PASSKNOKR'S  nAGQAOE, 


§286 


It  has  been  held  that  the  passonftor  had  delayed  an 
unreasonable  time,  where  he,  having;  arrived  on  Satur- 
day afternoon,  his  baggage  was  destroyed  by  tire  in 
the  depot  at  3  a.  ni.  on  ?Tonday'  Avlicre  he  arrived  at 
8:30  ]).  ui.,  and  allow  d  Jiis  baggage  to  reuuilu  at  the 
station  over  night;-  where  a  passenger  by  water,  arriv- 
ing on  Monday  did  not  demand  it  until  Wednesday;'' 
where  he  arrived  at.  3  p.  m.  and  did  not  demand  it  until 
S  p.  m.,'  whei'e  he  left  it  for  sevimteen  hours,'"'  for  two 
days,"  and  for  one  Avhole  day  J 

If  the  baggage  is  ready  for  delivery  on  arrival 
of  tlie  train,  or  other  vehicle,  i  ue  lateness  of  the 
hour    of    arrival    will    not    excuse    him    from    call- 


ing 


for     it;*^ 


nor 


been     detained     on 


will 
his 


1  nnoRor  1-.  K.  Co.,fi3  Mo.  10(1;  Hi  Am. 
Kcp.  I'Tl. 

2  1-oiiisvillc  etc.  K.  Co.  r.  Malmn.M  Hush, 
184 ;  Jacobs  r.  Tiitt, :«  Keil.  Rep.  412. 

•1  Van  Uoru  v.  Kermct,  4  K.  1).  Smith 
48.1. 

4  I'cnton  V.  R.  Co.,  28  V  C.  Q.  «.  ,SG7. 

«  .loni'S  V.  Trans.  Co.,  50  Itarb.  lim. 

fi  IJiirnull  V.  n.  Co. .  45  N.  Y.  1«4  ;  «  Am. 
R.'p.  Gl. 

"  lldldridKc  V.  R.  Co.,  56  Unrb.  101. 

COiiimit  f.  llonsliaw,  a5  Vt.  005;  Itoth 
r.  R.  Co.,  ?.i  N.  Y.  548. 

» Chicago  I'tc.  R.  Co.  v.  Iloyrc,  ":5  HI. 
610.  24  Am.  Rep.  200,  the  court  sajinp: 
"The  court  at  tho  instance  of  apix'Uec, 
instructed  tlie  jury  'tliat  a  reasonal)le 
time  allowed  the  plaintiff  to  claim  his 
baggage  means  such  time  as  is  reasoiui- 
ble  cousidcring  the  state  of  his  health, 
and  his  ability  to  proceed  to  his  destina- 
tion, or  to  make  deuuind,  and  the  other 
circumstances  in  tlie  case  proven.'  This 
charge  does  not  state  the  law  correctly, 
as  appliable  to  the  facts  of  this  case. 
Commonly  the  passengerand  his  luggage 
are  carried  on  the  same  train,  and  it  is 
delivered  to  him  on  the  platform  on  his 
arrival.  Hut  if,  for  any  reason,  .lot  the 
fault  of  tlie  company,  the  pa.ssenger  does 
not  choose  to  claim  it,  tlie  carrier  may 
rightfully  store  it  in  a  secure  warehouse. 


the     fact     that     he     has 
journey     by     illness;"     nor 

This  is  not  d'V  the  bcnellt  of  the  carrier, 
but  for  tlie  convenience  of  the  traveler. 
It  was  never  intended  that  passenger 
ciirriers  should  become  warehousemen 
of  the  traveler's  personal  luggage.  The 
common  custom  is  to  deliver  it  immedi- 
ately upon  its  arrival  at  its  destination, 
on  the  platform.  It  would  bu  extending 
the  liability  of  such  carriers  beyond  any- 
thing required  by  jiublic  exigency,  or  tho 
necessities  of  public  interests,  to  hold 
them  responsiblo  as  common  carriers 
after  the  lap.^e  of  a  reasonable  time,  or 
after  the  traveler  has  hail  a  reasonable 
opportunity  to  claim  and  take  away  his 
personal  baggage,  and  unless  the  carrier 
itself  is  at  fault,  it  seems  to  us  the  passen- 
ger ought  not  to  be  iiermitled  to  exteud 
the  strict  and  rigid  lialiility  incident  to 
common  carriers,  for  any  purposes  of  liis 
own  convenience,  nor  by  reason  of  any 
inevitable  accident  to  himself-  The  car- 
rier never  contracted  to  carry  him  as  a 
passenger  with  a  view  to  sueli  extended 
liability  for  his  ])aggage.  It  is  sought  to 
justify  the  giving  of  the  instruction  upon 
the  facts  tcslilled  to  by  tho  appellee,  that 
his  Journey  was  delayed  on  account  of 
sickness.  The  company,  it  is  contended, 
consented  to  the  delay  by  giving  him  a 
'•lay-over  ticket."  It  wasuuderno  legal 
liability  to  give  him  such  a  ticket,  and  it 

411 


Jf-"^ 


I 


§287 


Till-:  passenger's  baggage. 


[PAKT  III. 


rT'l 


r- 


that  the  day  is  Sunday.^  In  all  these  cases, 
however,  it  is  assumed  or  proved  that  the  bag- 
gage was  read}'  for  the  passenger  as  he  left  the  vehicle.- 
If  the  carrier,  for  his  own  convenience,  does  not  permit 
baggage  to  be  claimed  and  taken  away  from  his  plat- 
form, but  carries  it  to  his  baggage  room  until  it  is  con- 
venient for  him  to  deliver  it  there,  the  liability  of  the 
carrier  will  be  extended  until  such  time  as  the  passen- 
ger may  have  had  a  reasonable  opportunity  to  claim 
it  at  that  place." 

§  287.    Liability  of  Carrier  as  Wareliouseman.— 

Though  his  liabilitj'  as  a  carrier  has  ceased,  the  bag- 
gage, not  being  called  for  wiihin  a  reasonable  time, 
the  carrier  cannot  abandon  it,  but  on  the  contrary,  the 
law  requires  that  he  have  a  safe,  secure  and  proper 
place  in  which  to  store  it,  until  called  for  or  other- 
wise disposed  of  according  to  law.*  After  the  passen- 
ger has  had  an  oi)portunity  to  remove  his  baggage,  it 
remains  in  the  custody  of  the  carrier,  not  as  a  carrier, 
but  as  a   Avarehouseman."     From  thenceforward,  ho 


Tva'^flnne  for  the  hniiiane  purpose  of  ac- 
foniiiiodatiiiK  tlm  pa.-si'iijter.  He  was 
physically  unable  to  prosi'ciite  his  jour- 
ney. This  was  certainly  no  fault  of  the 
company,  and  if  the  carrier  was  willing 
to  ohlifte  him  in  his  exrcuiity,  its  re  spon- 
sibility  ought  not,  for  that  reason,  to  ho 
enlarged.  Had  his  sickness  coniiniied 
for  any  consiilerahle  perioil,  it  seems  un- 
reasonable that  the  company,  durinp  all 
the  time  it  should  be  coinjielleil,  in  con- 
seijuence  thcri.'of,  to  keep  his  luKJI-'Ki'  m 
its  warehouse,  should  be  held  to  the 
stri<'t  and  ri^^id  liability  of  a  common 
canii'r.  We  think  the  objection  to  thi'= 
eviilence  offered  bv  appellee  oufiht  to 
have  been  sustained;  its  production 
c-ould  ouly  mislead  the  jury ;  it  did  not 
tend  to  show  it  was  throujjh  any  neglect 
or  default  of  the  company  that  it  was 
couipulled  to  place  appellee's  lu^tfajre  in 
its  warehouse;  uud  if  it  proves  anythiu):, 

412 


it  is  that  the  company  (fave  him  the 
"lavDver  ticket"  on  the  implied  comli- 
tion  the  passenijcr  would  crmsent  that 
the  carrier  niif'ht  place  his  bajrpafre  <mi 
its  arrival,  in  its  warehouse,  using  ordi- 
nary care  for  its  preservation." 

1  .Jones  r.  Trr.ns.  Co.,  HO  liarb.  V,'3. 

•-'  .><ee  Dittr.ian  etc.  Co.  r.  H.  Co.,  .W  N. 
\V.  Uep.  2.')7  (la.). 

.'I  (Jiiimit  r,  Ilenshaw,3ij  Vt.  CiO.") :  .Jacobs 
c.  Tnlt,:i3  Ki'd.  Uep.  112. 

4  .^loto  r.  ]{.  ro.,2-Ia.  22;  1  .\m.  I!ep. 
212;  Bartholomew  f.  It.  Co.,  XV.\  111.  227; 
U  \m.  Hep.  45;  Chicago  etc.  It.  Co.  r. 
Kairdough,  52111.  lOti;  Muttison  f.  It.  Co., 
57  N.  Y.  5,V2. 

R  Stole  V.  U.  Co.,  27  la.  22;  1  Am.  Rep. 
212;  Itothf.  U.  Co.,3<  N.  Y.  54H;  I'ike  r. 
U.  Co.,  40  Wis.  5'!3;  IJininny  v.  K.  Co.,  4'.) 
N.  Y.  54(5;  Chicago  etc.  1{.  Co.  r.  Hoyce, 
7:U1I.  510;  24  .\m.  Kcp.  2(W;  Uoth  v.  U. 
Co.,34N.  \.  548;  00  Am.  Dec.  736;  Van 


I 


CII.  XVIII.]  THE  passenger's  BAGGAGE. 


§288 


is  not  an  insurer,  but  is  bound  to  exercise  tlie  same 
care  only  that  ordinary  prudent  men  do  in  keeping 
tlieir  own  goods  of  similar  kind  or  value.^ 

§  288.  As  to  Connecting  Carriers. — The  rules 
hereafter  stated  in  regard  to  connecting  carriers  of 
passengers,-  apply  likewise  to  the  passenger's  bag- 
gage, the  carriage  of  which  is  regarded  as  only  an 
incident  to  the  carriage  of  the  passenger.''  A  railroad, 
checking  baggage  over  its  own  and  other  lines  is  liable 
for  it  until  it  reaches  its  destination.^  And  the  fact 
that  at  some  point  on  the  passenger's  journey  his  bag- 
gage is  rechecked,  will  not  operate  as  a  new  contract 
for  its  carriage  from  that  point,  as  such  act  will  be 
considered  as  merely  carrying  out  the  original  con- 
tract." If  the  action  be  brought  against  the  connect- 
ing carrier,  it  will,  of  course,  be  necessary  for  the  pas- 
senger to  show  that  his  baggage  came  into  the  pos- 
session of  the  defendant,  and  was  injured  or  lost  while 
in  such  jiossession ;"  but  this  may  be  shown  by  evidence 
from  which  such  possession  may  be  presumed,  as  well 
as  by  direct  proof,^  as  by  producing  the  carrier's  check 
and  showing  that  a  part  of  the  baggage  was  delivered 


Uorn  V.  Eermit,  4  E.  D  Smith,  464 ;  Lon- 
isvilleetc.  It.  Co.  v.  Miihiin,  8  Bush,  184; 
lloldridge  y.  11.  Co.,  56  Barb.  1!»1 ;  Bar- 
tholomew V.  U.  Co.,  53  111.  ?27 ;  5  Am.  Kep. 
45;  Biirnell  r.  H.  Co.,  45  N.  Y.  184;  G  Am. 
Uep.  Gi ;  Chicago  etc.  U.  Co.  r.  Fairc.ongh, 
S2I11.  lOf.;  Mattisonv.  U.  Co.,57N.  Y552; 
Uo!-s  V.  U.  Co.,  4  Mo,  App.  5.SH;  I'enton  i'. 
11.  Co.,  28  U.  C.  Q.  H.  .S67 ;  ratschcider  v. 
IL  Co.,  L.  U.  3  Ex.  Div.  153;  Chicago  etc. 
It.  Co.  r.  Addizoat,  17  111.  App.  6;t2;  Oni- 
mit  r.  Ilonshaw,  Ho  Vt.  f)05;  84  Am.  Dec. 
646 ;  Warner  f.  It.  Co.  22  Iowa,  160 ;  92 
Am.  Dec.  389. 

1  Chicago  etc.  K.  Co.  v.  Boyce,  73  111. 
610; '24  Am.  Uep.  2(1S;  Both  r.  It.  Co.,  .14 
N.  Y.  548. 

2  Poet,  §  291. 

!'  Caiidee  r.  It.  Co., post;  Kcssler  r.  It. 
Co.,  61  N.  Y.  538 ;  «.  c.  7  Laus.  62 ;  McCor- 


mick  V.  R.  Co..  4  E.  D.  Smith,  181;  Chi- 
cago etc.  It.  Co.  i:  rahcy,  52  111.  81 ;  4  Am. 
Uep.;  Fairfax  r.  K.  Co.,  5  J.  &  S.  516; 
Knight  r.  11.  Co.,  56  Mo.  2.'?4;  llartan  r. 
It.  Co.,  114  Mass.  44;  Hood  v.  It.  Co.,  22 
Conn.,  1 ;  Elmore  r.  It.  Co.,  23  Conn.  457 ; 
Isaacson  v.  K.  Co.,  94  N'.  Y.  278;  46  Am. 
It'p.  142. 

4  111.  Cent.  It.  Co.  V.  Copcland,  24  111. 
332;  76  Am.  Dec.  749. 

«  Caudeo  v.  11.  Co.,  21  Wis.  582;  94  Am. 
Dec.  6GG. 

fl  Kessler  r.  It.  Co.,  ante;  McCormack 
f.  H.  Co.,  ante ;  Chicago  etc.  It.  Co.  r.  Ka- 
hey,  ante;  Fairfax  r.  It.  Co.,  6  .1.  &  S.  516; 
Baltimore  etc.  .Steam  Co.  v.  Smith,  23  Md. 
462. 

7  Kan.  Pac.  11.  Co.  v.  Montello,  10  Kan, 
111. 


"v 


§289 


THE  passenger's  BAGGAGE.  [PART  III, 


by  Mm  at  the  destination.^  Where  a  railroad  gives 
its  check  to  a  passenger  for  the  check  of  another  con- 
necting road,  this,  though  the  baggage  ha '  not  yet 
arrived,  is  prima  facie  evidence  of  the  receipt  of  the 
baggage,  especially  where  it  had  surrendered  the  pas- 
senger's check  to  the  first  road.-  Efforts  by  the  con- 
necting road  to  find  a  passenger's  lost  baggage,  or  even 
an  offer  to  compromise  the  plaintiff's  claim,  will  not 
render  it  liable,  if  it  appears  that  the  baggage  had 
never  come  into  its  possession.^ 

§  289.  Where  Baggage  in  Custody  of  Passenger. 
— The  liability  of  a  common  carrier  of  goods  was 
founded,  as  we  have  seen,  upon  the  fact  that  having 
the  custody  of  the  goods,  he  was  in  a  position,  by  col- 
lusion with  others,  to  make  away  with  them,  and  when 
called  upon  to  explain  their  loss,  to  set  up  an  excuse 
which  the  customer  would  be  unable  to  disprove.  For 
the  same  reason-s  was  the  carrier  of  passengers  held  to 
be  an  insurer  of  the  safety  of  the  passenger's  baggage. 
But  where  the  carrier  has  not  the  custody  of  the  bag- 
gage; where  it  has  not  been  delivered  into  his  hands, 
these  reasons  are  absent,  and  the  strict  liability  of  the 
carrier  could  hardly  in  fairness  be  enforced. 

Hence,  where  there  has  been  no  delivery  of  the  prop- 
erty to  the  carrier — as  in  the  case  of  articles  carried 
upon  or  about  the  person — the  clothing  he  is  wearing, 
the  watch  or  jewelry  carried  in  his  pocket,  the  money  in 
his  purse  or  the  like — it  seems  to  be  generally  settled 
that  the  carrier  is  not  liable  as  an  insurer,  because 


1  McCormack  v.  H.  Co.,  4  K.  D.  Smith  the  bagjrnKo  which  is  checked,  he  should 
181.  ffive  iiiiinediiite  notice  to  the  owiu-r,  or 

2  Chicago  etc.  R.  Co.  v.  Clayton,  78  111.  the  latter  road  will  be  liable.     Davis  v. 
616.    If.on  a  change  of  passage  from  one  K.  Co.,  22  111.  278. 

railroad  to  another,  the  agint  of  the  lat-  3  Mich.  South.  U.  Co.  r.  Meyres,  il  111. 

ter  road  who  has  given  the  passenger  a  627. 
new  check  (or  his  check  does  not  And 

414 


OH.  XVIII.]  THE  passenger's  BAGGAGE. 


§289 


there  has  been  no  delivery  of  it  to  him.^  Thus, 
where  a  passenger  went  into  a  car  with  his  overcoat 
on  his  arm,  which  he  threw  on  his  seat,  and  when  he 
left  the  train  at  its  destination,  forgot  to  take  it  with 
him,  the  court  said:  ''The  overcoat  was  not  delivered 
into  the  possession  or  custody  of  the  defendants,  which 
is  essential  to  their  liability  as  carriers.  *  *  »  if 
they  were  under  any  obligation  to  take  charge  of  the 
article  in  question  after  it  was  discovered  to  have  been 
left  in  the  car  (and  it  is  not  necessary  to  deny  that  they 
were),  ordinary  care  is  all  that  can  be  exacted,  and  that 
was  sufficiently  established. "^ 

But  as  to  property  not  carried  upon  or  about  the 
person  of  the  passenger,  the  mere  fact  that  the  carrier 
permits  it  to  be  taken  by  the  passenger  into  the  par- 
ticular car  in  which  he  is  riding,  in  order  that  he  may 
have  the  use  of  it  during  the  journey,  instead  of  placing 
it  in  the  baggage  car,  does  not  necessarily  prove  that 
the  passenger  has  assumed  custody  of  it  or  has  taken 
it  out  of  the  legal  custody  of  the  carrier.* 

In  the  leading  English  case  on  the  subject,*  Cock- 
burn,  C.  J.,  said:  "I  am  far  from  saying  that  no  case 
can  arise  in  which  a  passenger  having  luggage  which, 
by  the  terms  of  the  contract,  the  company  is  bound  to 
convey  'to  the  place  of  destination,  can  release  the  com- 
pany from  the  care  and  custody  of  an  article,  by  tak- 
ing it  into  his  own  immediate  charge;  but  I  think  the 
circumstances  should  be  very  strong  to  show  such  an 
intention  on  the  part  of  the  passenger,  and  to  relieve 
the  company  of  their  ordinary  liability.  And  it  is  not 
because  a  part  of  the  passenger's  luggage,  which  is 


>  Clnrk  V.  Unrns,  118  Mass.  27S;  The 
Chrystiil  Pnlnci-,  IG  R.  Mon.  302 ;  Weeks  v. 
».  Co.,  72  N.  Y.  60 ;  Tower  v.  R.  Co.,  7  Hill 
47;  42  Am.  Dec.  36. 


8  Tower  v.  R.  Co.,  nupra. 
I  Lc  Conteur  r.  R.  Co.,  U  R.  1  Q.  B.  64; 
6  B.  &  S.  %1 ;  13  L.  T.  (N.  S.)  326. 
*  Le  Oonteur  v.  U.  Co.,  ante 

415 


^s^i^P" 


§289 


THE  passenger's  BAGGAGE.  [PART  III. 


JC:.:* 


ir- 


to  be  conveyed  with  him,  is,  by  the  mutual  consent 
of  the  company  and  himself,  placed  with  him  in  the 
carriage  in  which  he  travels,  that  the  company  are 
to  be  considered  as  released  from  their  ordinary  obli- 
gations. Nothing  could  be  more  inconvenient  than 
that  the  practice  of  placing  small  articles,  whicli  it 
is  convenient  to  the  passenger  to  have  about  him  in 
the  carriage  in  which  he  travels,  should  be  discon- 
tinued; and  if  the  company  Avere,  from  the  mere  fact 
of  articles  of  this  description  being  placed  in  a  cai- 
riage  with  a  passenger,  tt)  be  at  once  relieved  fi'itm 
the  obligation  of  safe  carriage,  it  would  follow  that 
no  one  who  has  occasion  to  leave  tlie  can'iage  tem- 
porarily, could  do  so  consistently  with  the  safety  of 
his  property.  I  cannot  think,  therefore,  we  ought  to 
tome  to  any  conclusion  which  would  have  the  (^ITcct 
of  relieving  the  company  as  carriers  from  the  (obliga- 
tion to  carry  safely,  which  obligation,  for  general  con- 
venience of  the  public,  ought  to  attach  to  them.  1 
cannot  help  thinking,  therefore,  we  ought  to  r(H]uire 
very  special  circumstances,  such,  in  fact,  as  would  lead 
irresistibly  to  the  conclusion  that  the  passenger  takw 
such  personal  control  and  charge  of  his  property  as 
altogether  to  give  up  all  hold  upon  the  crmipany,  be- 
fore we  say  the  comj^any,  as'  carriers,  are  relieved  from 
their  liability  in  case  of  loss.  If,  therefore,  this  case 
had  depended  on  the  question,  whether  or  not  the  com- 
pany were  liable  upon  the  general  issue,  I  should  be 
of  opinion  that  Che  plaintiff  was  entitled  to  recover." 
All  the  judges  agi'eed  that  the  jw^session  of  his 
baggage,  retained  by  the  passenger,  might  be  so  com- 
plete and  exclusive  as  to  relieve  the  carrier  from  all 
responsibility  in  respect  to  it. 

The  question  has  presented  itself  both  in  actions 
against  (a)  carriers  by  land  and  (bj  by  water. 
416 


en.  XVIII.]        THE  passenger's  baggage. 


§289 


(a)  Carriers  by  Land.  —  In  the  leading  English 
case,^  the  passenger's  valise  had  been  placed  by  the  rail- 
road porter  on  the  seat  of  the  carriage  in  which  he  was 
riding,  and  the  court  said  that  it  would  require  "such 
cii'cumstances  as  would  lead  irresistibly  to  the  con- 
clusion that  the  passenger  takes  such  personal  con- 
trol and  charge  of  his  property  as  altogether  to  give 
up  all  hold  upon  the  company  before  we  say  the  com- 
pany as  carriers,  are  relieved  from  their  liability  in 
case  of  loss."-  The  point  is  not  so  clearly  presented 
in  the  American  cases,^  but  the  principle  is  clearly 
light.* 

(b)  Carriers  hy  Water. —  In  this  case  it  seems, 
however,  to  be  well  settled  that  the  baggage  of  pas- 
sengers may  be  taken  by  them  into  the  state-rooms 
which  are  assigned  to  them,  without  relieving  the  car- 
rier from  any  of  his  responsibility  for  its  safety,  as  a 
common  carrier,  unless  it  appear  as  a  matter  of  fact 
that  the  passenger  has  taken  it  into  his  charge  aninio 
cii.sfoilioidi,  to  the  exclusion  of  the  carrier,  the  assign- 


1  Lo  Con  ten  r  r:  R,  Co.,  supra. 

2  Anil  sot'  Kichards  v.  K.  Co.,  7  M.  G.  & 
S.  no ;  G  Kiv,'.  1{  U.  A  ( ".('as.  49 ;  62  Kng.Coni. 
L.  8:n;  t;.;ml!le  v.  K.  Co.,  24  U.  C.  Q.  B. 
40" ;  ItorKlieiin  r.  It.  Co.,  L.  U.  3  C.  P.  l)iv. 
221 ;  6  ( V'lit.  L.  J.  22». 

3  Sec  Kinsley  r.  U.  Co.,  12fi  Mass.  64. 

4  In  Hannibal  vU:  II.  Co.  v.  Swift,  12 
Wall.  2(!2,  the  Snpri'uie  Court  of  the 
rnitt'il  States  says:  "The  control  and 
nianafreinent  of  the  car  or  of  the  train  by 
the  servants  and  employees  of  the  com- 
pany were  not  impeded  or  interferred 
with  ;  and  where  no  such  interference  is 
attempted,  it  can  never  be  a  ground  for 
limiting  the  responsibility  of  the  carrier 
that  the  owner  of  the  property  accom- 
panies it  and  keeps  a  watchful  lookout  for 
its  safety."  In  an  action  against  a 
sleeping  car  company,  it  was  said: 
nium  V.  Sooth.  Pull.  Car  Co., 3  Cent.  L. 
J.  5!)2 ;  l»ull.  I'al.  Car  Co.  r.  Freudenstein, 
34  rac.  R«p.  679  (Col.)    •'  It  is  undoubt- 


edly the  law  that  where  a  passenger  does 
not  deliver  his  property  to  a  carrier,  but 
retains  the  exclusive  possession  and  con- 
trol of  it  himself,  the  can-ier  is  not  liable 
In  case  of  a  loss,  as,  for  instance,  when  a 
passenger's  pocket  is  picked,  or  an  over- 
coat or  a  satchel  is  taken  from  a  seat  oc- 
cnpid  by  him.  Upon  this  theory,  it  is  in- 
sisted by  defendant  that  it  cannot  be 
liable  for  negligence,  inasmuch  as  the 
clothing  and  effects  of  its  guests  are 
never  formally  delivered  to  it.  I  cannot 
for  a  moment  accede  to  this  proposition. 
It  is  scarcely  necessary  to  say  that  a  per- 
son asleep  cannot  retain  manual  posses- 
sion or  control  of  anything.  The  invita- 
tion to  make  use  of  the  bed  carries  with 
It  an  invitation  to  sleep,  and  an  implied 
agreement  to  take  reasonable  care  of 
the  guest's  effects  while  he  is  in  such  a 
state  that  care,  upon  his  own  part  is  im- 
possible. There  is  all  the  delivery  which 
the  circnmstaaces  of  the  case  admit." 

417 


mr 


UU  IIJI^JIH 


I 


§289 


THE  passenger's  BAGGAGE. 


[PAKT  III. 


C  -^ 

.ii'f"" 

■-ri 


:?:■-• 


~;3:: 


ment  to  the  room  being  generally  "a  designation  of  the 
place  in  which  the  traveler  may  put  his  ordinary  bag- 
gage," without  excluding  the  custody  of  the  carrier.' 
It  has  been  even  held  that  a  regulation  forbidding  pas- 
sengers from  taking  their  baggage  into  their  state- 
rooms except  at  their  own  risk  was  unreasonable  and 
void,  so  far  as  it  would  apply  to  light  baggage  or 
satchels  containing  articles  for  present  use  in  travel.- 
From  the  foregoing  cases  we  conclude: 

1.  That  as  to  articles  carried  upon  or  about  the  per- 
son of  the  passenger,  and  which,  if  they  had  been  de- 
livered to  the  carrier  would  have  been  "baggage,"  the 
carrier  is  liable  only  for  a  loss  arising  through  his  neg- 
ligence or  want  of  ordinary  care."* 

2.  That  as  to  articles  which,  though  delivered^  to  the 
carrier  are  yet  allowed  for  his  convenience  to  accom- 
pany the  passenger  on  the  same  vehicle,  the  carrier 
is  an  insurer. 

3.  But  as  to  articles  not  "baggage,"  and  of  Avhich  the 
carrier  has  no  notice,  as,  for  example,  large  sums  of 
money  carried  by  the  passenger  on  his  person,  the  car- 
rier is  not  liable  at  all.'' 

Thus,  where  plaintiff  intrusted  a  package  of  money 


1  Hntoh.  Carr.,  §  700.  (Jore  v.  Trans. 
Co.,  2  Daly,  254;  Mndgett  v.  Steamboat 
Co.,  1  Daly,  151 ;  Gloason  v.  Tran.  Co.,  32 
Wis.  R5 ;  14  Am.  Rep.  7ir. ;  Macklin  N.  .1. 
Steamboat  Co.,  7  Abb.  Pr.  (N.  S  ,  a;  Van 
Horn  r.  Kormit,  4  E.  D.  Smith,  45,S ;  Amer- 
ican Steam.  Co.  v.  Bryan,  83  Pa.  St.  446; 
Walsh  V.  The  Wright,  1  Newb.  Adm.  494 ; 
Dnnn  v.  New  Haven  Steam  Co.,  12  N.  Y. 
Snpp.  40G;58  Hun,  461;  Williams  r.  Kco- 
knk  Co.,  3  Cent.  L.  J.  400.  See  McKce  r. 
Owen,  15  Mich.  115,  where  the  qnestion 
is  discnssed  at  length  by  an  equally  lii- 
Vided  court. 

2  Macklin  v.  N.  J.  Steam  Co.,  7  Abb- 
Pr.  (N.  S.)  241. 

S  The  sleeping  car  cases,  poit,  also 
illustrate  this  principle. 

418 


4  The  delivery  to  the  carrier  mnst  al- 
ways bo  proved.  In  a  Canadian  case 
where  a  passenger  entered  a  car  just  be- 
fore the  train  started,  left  his  valise  on  a 
vacant  seat  and  went  out,  and  upon  his 
return  the  valise  Tas  gone,  it  was  hi'ld 
that  there  had  been  no  snflleient  delivery 
of  the  valiSG  to  the  .carrier,  it  not  appear- 
ing that  anyone  was  in  charge  of  the 
train  at  the  time.  Kerr  v.  K.  Co.,  34  U. 
C.  C.  P.  209. 

»  First  N,at.  Bank  v.  R.  Co.,  20  Ohio  St. 
259;  5  Am.  Uep.  C55;  Wilcox  i'.  The  Phila- 
delphia, 9  La.  80;29  Am.  Dec.  436;  Ilillis 
V.  U.  Co.,  33  V.  W.  Rep.  643  (la.) ;  Weeks 
V.  R.  Co.,  72  N.  T.  60. 


OH.  XVIII.]  THE  PASSENGEE's  BAGGAGE. 


§289 


to  his  agent  to  carry,  and  the  agent,  while  a  passenger 
on  the  railroad,  was  killed,  and  the  money  which  was 
carried  on  the  agent's  person,  without  notice  to  the 
railroad  company,  was  destroyed  by  the  company's 
negligence,  it  was  held  that  the  company  was  not  lia- 
ble for  the  loss  of  the  money.*     In  an  Iowa  case,  a  pas- 
senger gave  his  overcoat,  containing  a  pocket  book  in 
which  was  the  sum  of  $500  which  he  was  taking  with 
him  for  the  purpose  of  making  an  investment,  to  the 
porter  of  the  sleeping  car,  who  hung  it  up  in  his 
berth.     He  had  money  enough  for  traveling  expenses 
elsewhere  about  his  person.     During  the  journey,  the 
train  was  derailed,  the  car  in  which  he  was  riding  be- 
ing thrown  on  its  side  and  taking  fire.     The  passenger 
got  out  safely,  and  after  the  fire  was  extinguished  he 
told  the  porter  in  regard  to  the  money,  and  the  over- 
coat was  returned  to  him,  but  the  pocket  book  had 
disappeared.     It  was  held  that  there  was  no  cause  of 
action  against  the  railroad.^     In  a  New  York  case, 
cars  arriving  at  an  outer  street  of  New  York,  were  dis- 
connected to  be  drawn  by  horses,  leaving  a  car  stand- 
ing alone,  on  which  was  W,  a  passenger,  with  no  em- 
l)loyee  thereon.     As  W  stepped  to  the  door,  he  was 
attacked  by  persons  not  passengers,  and  robbed  of 
|1(»,000  in  United  States  bonds,  which  he  was  carry- 
ing on  his  person,  without  notice  to  the  railroad  com- 
pany.    In  an  action  against  the  company  for  failing 
to  protect  him,  it  was  held  that  the  loss  of  the  bonds 
could  not  be  considered  in  fixing  the  damages.^ 


1  First  Nat.  Bank  ».  Marietta,  etc.  B. 
Co.,  20  Ohio  St.  269;  6  Am.  Kep.  665. 


2  Hillis  V.  R.  Co., 33  N.W.  Rep.  6«  (la.). 
»  Weeks  v.  U.  Co.,  72  N.  Y.  60. 

419 


I^UI^^II      I 


CHAPTER  XIX. 


THE    RESPONSIBILITY    FOIl    ACTS    OF    OTHERS. 


t-ri 

•XJ 


'3 


Section  290.  Passenger  Carrier  not  Bound  to  Carry  Beyond  Route. 

291.  Liability  Wliere  He  Maliea  Tlirougli  Contract. 

292.  Evideuce  of  Tlirough  Contract. 

293.  Wliere  Means  of  Transportation  Belong  to  Third  Parties. 

294.  Where  Third  Parties  Use  Carrier's   Means  of  Transpor- 

tation. 

296.  Where  Line  in  Hands  of  Trustees. 

296.  Wliere  Line  in  Hands  of  Lessees,  Purchasers  or  Others. 

297.  Liability  of  Master  for  Acts  of  Ser\  ants. 

298.  Application  of  Foregoing  Rules  as  Between  Carrier  and 

Passenger. 

299.  Rule  of  Absolute  Liability  and  Reasons  Therefor. 

300.  Relation  of  Ma.ster  and  Servant  Must  Exist. 

301.  Liability  for  Acts  of  Independent  Contractors. 

302.  Liability  for  Acts  of  Fellow  Passengers  and  Strangers. 


J.- 


§  290.     Passenger  Carrier  Not  Bound  to  Carry 

Beyond  Route. — A  carrier  is  not  bound  to  sell  a  pas- 
sengtx'  a  ticket  over  a  connecting  line,  and  the  right 
to  do  so  can  only  be  obtained  by  agreement  or  by  sta- 
tutory authority.^  lie  may,  therefore,  where  he  has  such 
authority,  restrict  his  liabilit}-  to  the  end  of  his  own 
route,  and  in  such  case  if  he  sell  at  the  same  time  a 
ticket  ov<»i'  the  connecting  line,  this  will  be  as  agent 
for  the  connecting  carrier,  for  whose  acts  he  cannot 
be  made  responsible.^ 


1  ChicHRo  etc,  R.  Co.  v.  Penn.  1  Inter. 
Com.  Rep.  357 ;  Little  Rock  etc.  R.  Co.  v. 
R.  Co.,  2  Id.  454;  Kentucky  etc.  RriilKo 
Co.  f.R.Co.,  37  Fed.  Itep.  567;  .\  lailrond 
conductor  has  no  implied  authority  to  col- 
lect faro  for  passage  over  a  connecting 

420 


line.    Hnggai'ty  v.  R.  Co.,  59  Mich.  .S66 ;  60 
Am.  Rep.   301 ;  26  N.  W.  Rep.  6:«. 

2  Kerrigan  f.  R.  Co.,  81  Cal.  248 ;  22  Pac. 
Rep.  677;  Peterson  v.  R.  Co.,  80  Iji.  92  ;  45 
N.  W.  Rep.  57S ;  Bethea  f.  R.  Co.,  26  S.  C. 
91;  Harris  f.  Howe,  74  Tex.  514;  15  Am. 
St.  Rep.  862;  12  S.  W.  Rep.  224. 


CH.  XIX.]     RESPONSIBILITY  FOR  ACTS  OF  OTHERS. 


§291 


§  291.  Liability  Wliere  He  Makes  Tlirough  Con- 
tract. — A  carrier  of  passengers  who  undertakes  to 
carry  a  person  to  a  certain  destination,  is  responsible 
to  Liiu  as  a  carrier  throughout  the  whole  distance, 
whether  the  franchise  or  means  of  conveyance  at  the 
place  the  injury  occurs,  be  owned  or  controlled  by  him 
or  by  some  other  or  'connecting  carrier.^  Nor  can  the 
first  carrier  free  himself  from  liability  by  showing  an 
agreement  between  the  various  carriers  whose  lines 
constitute  the  route  that  each  shall  be  responsible  for 
losses  and  injuries  occurring  on  his  part  of  the  line.- 
And  it  makes  no  difference  whether  the  ticket  is  pur- 
chased at  one  of  his  stations,  or  at  a  station  of  a  con- 
tiguous carrier,  or  of  any  other  authorized  agent  of 
the  carrier.^  And  though  different  tickets  have  been 
issued  by  the  carrier  for  the  different  lines,  the  pas- 
senger may  show  that  the  contract  for  transportation 
was  a  through  contract,  for  the  reason  that  the  ticket 
is  merely  a  voucher,^  and  not  a  contract.^ 


*  I 


'  Thomp.  Carr.  Pass.  432;  Illinois  etc. 
U.  Co.  c.  ("opiJlautl,  24  111.  .S37 ;  76  Am. 
Dec.  749;  ISiiriR'll  r.  U.  Co.,  45  N.  Y.  184; 
Najac  V.  U.  Co.,  7  Allon,  829;  83  Am. 
Doc  680;  Wilson  i:  H.  Co.,  21  Gratt.  654; 
Ward  f.  Vandorbilt,  4  Abb.  App.  Dec.  521 ; 
Williams  V.  Vanderbilt,  28  N.  Y.  217;  29 
Barb.  491;  84  Am.  Dec.  333;  Qtiimby  v. 
Vandcrbilt,  17  N.  Y.  306;  72  Am.  Dec.  469; 
nartf.  R.  Co.,8  N.  Y.  37;  59  Am.  Dec. 
447;  Weed  t».  B.  Co.,  19  Wend.  634;  Can- 
deer.  K.  Co.,  21  Wis.  «82;  94  Am.  Dec. 
866;  Carter  V.  Teck,  4  Sneed,  203;  67  Am. 
Dec.  604 ;  Crott  v.  B.  Co.,  1  McArthur,  492 ; 
Bait.  etc.  It.  Co.  v.  Campbell,  36  Ohio  St. 
647 ;  Bait.  etc.  R.  Co.  v.  Harris,  12  Wall.  65 ; 
Nortb.  Cent.  B.  Co.  r.  Sehoil,  16  Md.  333; 
Chollette  v.  B.  Co.,  20  Neb.  159;  41  N.  W. 
Rep.  1106;  Stetler  v.  R.  Co.,  49  Wis.  609; 
6  N.  W.  Rrp.  303;  Wabash  etc.  R.  Co.  v. 
Peyton,  106  111.  634.  This  is  the  English 
rule.  Kcntt'.  R.  Co.,L.  R.  10  Q.  B.  1; 
Mytton  1'.  B.  Co.,  4  Hurl.  &  N.  614;  28  I.. 
J.  (Exch.)  385;  Btixton  r.  B.  Co.,  L.  R.  3 
Q.  B.  B49;  Great  West.  B.  Co.  f.  Blake,  7 


H.  AX.  986;  Birkett  v.  R.  Co.,  4  H.  &  N. 
730;  Thomas  v.  R.  Co.,  L.  B.  6  Q.  IJ.  549; 
In  a  few  states  it  is  held,  that  a  through 
ticket  in  the  form  of  several  tickets  by 
different  connecting  carriers  is  to  bo  re- 
garded as  a  distinct  contract  by  each  car- 
rier to  carry  over  his  own  line,  and  no 
farther.  Nashville  etc.  B.  Co.  v.  Spray- 
berry,  9  Heisk.  862;  35  Am.  Rep.  705; 
Hood  r.  R.  Co.,  22  Conn.  1 ;  Knight  v.  R. 
Co.,  56  Me.  235;96  Am.  Dec.  449;  Fursten- 
heim  v.  R.  Co.,  9  Heisk.  2.^8;  Brooke  v.  R. 
Co.,  IB  Mich.  332;  Hood r.  B  Co., 22  Conn. 
1;  Yonngr.  B.  Co.,  115  Pa.  St.  112;  7  Atl. 
Rep.  741. 

2  Wilson  V.  B.  Co.,  81  Gratt.  684 ;  Little 
V.  Dnsenbery,  46  N.  J.  (L.)  614. 

3  Schopman  v.  B.  Co.,  9  Cush.  24; 
Glascot'.  B.  Co.,  36  Barb.  651;  Chicago 
etc.  B.  Co.  V.  Pahey,  62  111.  81;  4  Am. 
Bep.  687; 

4  See  ante  §  240. 

«  Qniniby  v.  Vanderbilt,  mipra;  Van 
Buskirk  v.  Roberts,  31  \.  Y.  661. 

421 


c.  .J 


f1 

,5 


v' 


§  292  RESPONSIBILITY  FOR  ACTS  OF  OTHERS.    [PART  III. 

Where  the  contract  is  for  through  passage,  it  is  not 
material  that  the  passenger  knew  of  the  different  own- 
ership of  the  connecting  lines/  nor  will  he  be  bound 
by  a  notice  on  the  ticket  that  the  carrier  issuing  it 
will  not  be  responsible  for  injuries  except  on  his  own 
line.- 

And  as  in  the  case  of  the  carriage  of  goods,  the  car- 
rier on  whos^  line  the  injury  occurs,  may  be  sued.'' 

The  first  carrier  may,  in  anj'  event,  be  liable  for  an 
injury  to  his  passenger  caused  by  the  neglect  of  the 
servants  of  a  connecting  carrier,  as  for  example  where 
A  was  in  the  car  on  a  side  track  of  the  first  carrier  at 
the  connecting  point  of  the  two  roads,  and  was  injured 
by  the  negligence  of  a  brakeman  of  the  connectiug 
road  in  coupling  the  car  to  the  connecting  train. ^ 

§  292.  Evidence  of  Through  Contract.— The  is- 
suing of  a  ticket  to  a  point  on  a  line  beyond  his  route, 
is  evidence  that  the  carrier  has  undertaken  to  carry  the 
passenger  to  that  point."  Where  several  carriers  con- 
stitute a  through  line,  and  fare  received  for  through 
tickets  is  accounted  for  by  the  first  company  to  the 
other  companies  according  to  a  tariff  established  by 


1  C  arter  v.  Peck,  4  Sneed.  2oa ;  67  Am. 
Bt'p.  G04. 

2  Ct-ntnil  R.  Co.  v.  Combs,  70  Ua.  35,S; 
48  Am.  Itcp.  5«;  Wilson  v.  U.  Co.,  21 
Gratt.  654  ;a/i<er  where  the  contract  is  not 
a  through  one.  IVnn.  Co.  v.  Schwarzen- 
berger,  45  I'a.  St.  208. 

3  Johnson  v.  K.  Co.,  70  Pa.  St.  .357; 
Schopman  r.  U,  Co.,  9  Cnsh.  24;  tilasco 
V.  U.  Co.,  36  narb.  557;  Chicago  etc.  It. 
Co.  r.  Fahey,  52  111.  81;  4  Am.  Hop.  587; 
I'ennsylvania  etc.  U.  Co.  t'.  Schwarzen- 
berger,  45ra.  St.  2i)S;  81  Am.  Dec.  4110; 
Wolf  II.  It.  Co.,  68  (Ja.  633;  45  Am.  Uep. 
601;  Croft  f.  U.  Co.,  1  McArthiir,  4!»2. 
Kveniu  Kngland  where,  in  the  case  of 
goods,  the  connecting  carrier  cannot  bo 
sued  when  the  contract  is  a  through  one, 
he  iB  liable  for  an  injury  to  tbu  passuxt- 

422 


ger,  on  the  ground  that  the  connecting 
carrier  having  permitted  the  jia^senirer 
to  travel  on  his  train  must  see  that  he  is 
safely  carried.  Herringer  r.  U.  Co.,  4  C. 
1'.  Uiv.  163;  FoulkcstJ.U.  Co.,  4  C.  I'.  i)iv. 
267. 

4  White  r.  B.  Co.,  136  Mass.  321. 

s  III.  Cent.  It.  Co.  r.  Copeland.  suj>ra\ 
Najac  r.  R.  Co.,  supra;  Wilson  r.  U. 
Co.,  »i(/)ra;  Cary  c.  It.  Co.,  2'.t  Harb. 
.S5;  Weed  f.  R.  Co.,  giipra:  Cauileu  v. 
It.  Co.,  supra;  Carter  r.  I'eck,  supra; 
Hart  V.  II.  Co.,  supra;  Louisville  etc.  R. 
Co.  t'.  Weaver,  9  I.ea,3H;  42  Am.  Uep.  iir>4; 
Wa.-hington  r.  R.  Co.,  101  N.  t;. 'J.i'.i;  7  .S. 
K.  Rep.  789.  So  in  Kngland.  Kent  c.  It. 
Co.,  supra;  Great  West.  U.  Co.  v.  Blakc, 
suprtt. 


CH.  XIX.]     RESPONSIBILITY  FOB  ACTS  OF  OTHERS. 


§  293 


each  company  for  itself  (there  being  no  division  of 
profits  or  losses),  this  is  not  a  partnership  so  as  to  make 
each  carrier  liable  for  the  acts  of  the  others.'  Nor 
does  the  appointment  by  them  of  a  common  agent  to 
"ell  tickets  for  all.-  A  carrier  who  is  authorized  by 
tonnecting  lines  to  sell  tickets  over  their  routes  be- 
comes their  agent  and  they  are  bound  by  his  acts  and 
representations;^  but  he  is  not  responsible  for  their 
acts.* 

§  293.  Where  Means  of  Transportation  Belong 
to  Third  Parties. — A  carrier  is  liable  for  negligence 
in  the  construction,  maintenance  or  operation  of  any 
of  the  appliances  or  means  of  transportation  which  he 
uses  in  the  carriage  of  the  passengei,  although  they 
may  belong  to  and  be  under  the  contiol  of  others.  For 
example: 

(a)  The  carrier  maij  run  his  vehicles  over  the  road  of 
another  carrier.  Here  his  responsibility  is  the  same  as 
though  the  road  Avas  owned  and  controlled  by  him.^ 
In  an  English  case  the  plaintiff  purchased  a  ticket  of 
the  defendants,  paying  his  fare  to  a  station  beyond 
the  defendants'  line,  and  upon  a  connecting  line.  By 
arrangement  between  the  two  companies,  the  defend- 
ants were  permitted  to  use  the  line  of  the  other  com- 
pany for  the  transportation  of  their  cars,  and  the  fares 


1  Croft  V.  R.  Co.,  1  McArth.  492. 

2  Kllsworth  t'.  Tartt.,  20  Ala.  733;  Atchi- 
son etc.  I{.  Co.  V.  Coehran,  4.S  Kas.  225; 
23  Pac.  Hep.  161 ;  Hartun  v.  U.  Co.,  114 
Mass.  44. 

3  Young  V.  U.  Co.,  115  Pa.  St.  112 ;  7  Atl. 
Rep.  741. 

4  Harris  v.  Howe,  12  S.  W.  Uep.  224 
(Ti'X.). 

ft  Murch  V.  R.  Co.,29  X.  H.  9;  61  Am. 
Dec.  o31;  Si-ymour  r.  K.  Co.,  3  Biss.  43; 
Peters  v.  Uj  lands,  20  I'a.  St.  497;  59  Am. 
Dec.  74f.;  1  Pliila.  21)4;  McLoau  v.  Uur- 
bauk,  11  Miun.  277;  Cliauipioa  v,  Bost- 


wick,  11  Wend.  671 ;  18  Wend.  176,  ISl ;  31 
Am.  Dec.  370;  McKlroy  i-.  R.  Co.,  4  Cush. 
400;  50  Am.  Dec.  794.  Contra,  Sprapuc  v. 
Smitli,  29  Vt.  421 ;  70  Am.  Dec.  424,  where 
the  reasoning  and  conclusion  of  the 
Court  are  clearly  wron^'.  See  criticism 
of  this  case  in  Thonip.  Oarr.  Pas<.,  414; 
Patt.  K.  Ace.  Law  188.  See  the  Knglish 
cases  of  Hirkctt  f.  R.  Co.,  4  Hurl.  &  N. 
730;  Huxton  i'.  R.  Co.,  L.  R.  3  Q.  B.  549; 
Thomas  v.  R.  Co.  L.  R.  6  Q.  B.  226,  L.  R. 
6  Q.  B.  266;  John  v.  Bacon,  L.  B.  5  Com. 
P.  437. 

423 


§293 


RESPONSIBILITY  FOR  ACTS  OF  OTHERS,    [I'ART  III. 


■rj 


:d 


»«.-■■< 


were  apportioned  between  them.  The  plaintiff  con- 
tinued in  tl»e  same  car  throuj^liout  the  entire  journi;^', 
and  after  the  train  had  passed  upon  the  line  of  the 
other  company,  it  came  into  collision  with  a  locomotivi' 
left  on  that  line  by  the  servants  thereof,  injurinj;-  (be 
plaiutiff.  There  was  no  nejjjli};'ence  on  the  part  of  the 
driver  of  the  defendants'  train.  The  defendants  were 
held  responsible  under  their  imi>lied  contract  to  main- 
tain the  line  over  which  the  i)laintiff  must  travel  iu 
their  carriaj^es  in  a  lit  condition  for  trallic.'  So,  where 
a  stage-coach  ha<l  on  its  route  to  cross  a  ferry,  and  by 
the  nej^ligence  of  the  proprietors  of  the  ferry  the  life 
of  a  passenger  was  lost,  the  owners  of  the  stage-coach 
were  held  responsible.-'  The  same  conclusion  was 
reached  where  a  railroad  ran  its  trains  over  a  bridge 
belonging  to  a  bridge  company,  and  Ihe  fare-takei'  of 
the  bridge  company  ordered  a  passenger  to  be  pui  olT 
a  train  on  a  tressle  from  which  he  fell.-' 

(bj  Or  he  maji  uhv  the  rchiclr.s  of  a  tliird  purty.  Where 
a  railroad  brought  passengers  to  one  of  its  stations 
from  a  place  a  mile  distant  in  a  stage  owned  by  one  D, 
under  a  contract  with  D,  and  a  passenger,  while 
therein  proceeding  to  take  the  train  was  injured,  the 
stage  being  negligently  overturned,  it  was  held  that 
the  railroad  was  responsible.^       The  case  of  drawing 


I  Great  Wost.  R.  Co.  v.  Ulake,  7  H.  &  N. 

987:  "This  is  not,"  said  Cockburn.C.  J., 
"  likf  tl)e  case  ot  a  staK»'<'(iacli  proprie- 
tor, liccaiise  tlie  road  is  not  in  his  hands, 
and  hi!  lias  no  ini-ans  of  securing  its 
proper  condition.  When  the  contract  is 
entered  into,  the  road  wonld  be  in  a  cer- 
tain con<Iition,  witliont  any  thins  beiiijr 
required  to  be  done  on  tin;  part  of  tlie 
<'oach  proprietor  to  keep  it  in  a  safe  con- 
dition. Itailway  companies  oii^ht  at  U'ast 
to  use  duo  and  reascinal)le  care  to  keep 
the  line  over  which  tliey  contract  to  carry 
passengers  in  a  safe  conililion.  Tliero 
is  no  doubt  that  is  tliu  obligation  which  at- 
taches to  a  railway  company  who  under- 

424 


take  to  convey  passengers  tin         i  f  . 
whole  distance  on  their  lii  uy 

arrauKenient  with  another  I  ihey 

convey  passenpers  nvertho  v  ''orpart 
of  another  line,  the  same  ol>.  ilion  at- 
taches, and  they  make  the  other  com 
pany  their  aijent,  and  on  their  part  the; 
jindertake  that  the  other  comji.my  shall 
keep  their  line  in  a  proper  condition." 

2  McLean  r.  IJurhank,  1 1  Minn.  277. 

3  Union  It.  Co.  v.  Kallaher,  114  111.  325; 
2  N.  K.  Uep.  77. 

<  Ituffett  I'.  It.  Co.,  40  N.  Y.  ir,«,  tho 
Court  sayinK:  "There  can  be  no  room 
for  cioubt  that  where  a  corporation  un- 
dertakes   a  trausporttttion    buyoud   its 


OH.  XIX.]     RESPONSIBILITY  FOR  ACTS  OF  OTHERS. 


§  293 


room  or  sloopinR  oars,  owned  by  another  corporation, 
but  a  part  of  the  carrier's  train,  and  provided  for  such 
of  his  passengers  as  desire  extra  and  better  acconinio- 
dalion,  belongs  here.     For  defects  in  sucli  cars,  or  neg- 
ligence of  tlu*  servants  of  such  third  parties,  the  car- 
rier is  responsible.     Therefore,  the  action  has  been  sus- 
tained against  the  railroad  where  the  passenger,  while 
in  such  a  car,  was  injured  by  an  upper  berth  falling 
npon  his  head;'  where  his  satchel  was  lost  by  the  neg- 
ligence of  the  sleeping  car  porter,^  and  where  he  was 
assaulted  by  a  drawing  room  car  porter,''  in  the  last 
case  the  court  saying:  "The  business  of  running  draw- 
ing-room cai*s  in  connection  with  ordinary  passenger 
cars,  has  becomo  one  of  the  common  incidents  of  pas- 
wnger  traffic  on  the  leading  railroads  of  the  country. 
These  t'ars  ar»'  mingled  with  the  other  cars  of  the 
company,  and  are  open  to  all  who  desire  to  enter  them, 
and  who  are  willing  to  pay  a  sum  in  addition  to  the 
ordinary  fare,  for  the  special  accommodation  afforded 
by  them.     They  are  put  on  presumably  in  the  interest 
of  the  road.     They  form  a  part  of  the  train,  and  the 
manner  of  conducting  the  business,  is  an  invitation  by 
the  company  to  the  public  to  use  them,  upon  the  con- 
dition of  paying  the  extra  compenssition  charged.     Pas- 
sengers cannot  know  what  private  or  special  arrange- 
ment, if  any,  exists  between  the  company  and  third 


phartcrcrl  line  of  railroad,  and  an  injury 
to  tilt' person  occnrs,  through  the  nofjli- 
gence  of  their  agents,  that  the  corpora- 
tion is  liable  in  damages.  Whether  this 
injury  oeeurred  upon  another  railroad 
track,  or  upon  a  common  road  used  by 
them  in  the  same  business,  would  seem 
to  be  (juite  unimportant.  The  principle 
being  established,  that  they  are  liable 
for  injuries  occurring  at  the  point  in 
((nestion,  all  else  follows.  A  break  or 
loss  of  a  bridge,  often  compels  a  railroad 
company  to  transport  its  passengers  a 


short  distance,  by  stage  or  boat,  aronnd 
the  obstruction.  It  could  not  be  success- 
fully contended,  that  they  were  not 
bound  to  care  in  this  transportation,  or 
that  they  were  not  responsible  for  the 
want  of  it." 

1  I'enn.  Co.  v.  Roy,  102  U.  S.  4S1 ;   Rail- 
road Co.  V.  Walrath,  IS  Ohio  St.  401. 

2  Kinsley  v.  R.  Co.,  125  Mass.  64;  28 
Am.  Rep.  200. 

3  Thorpe  v.  R.  Co.,  76  N.  Y.  402;  82  Am. 
Rep.  325. 

42.') 


"»»-■■ 


§  293  BESPOXSIBILITY  FOR  ACTS  OF  OTHERS.    [PART  III, 


CO 

CI.  ••* 


:;3:; 
::r- 


persons,  under  whieli  this  part  of  the  business?  is  ccn- 
dueted,  and  they  have,  we  think,  in  taking  one  or  these 
cars,  a  right  to  assume  that  they  are  there  under  a 
contract  with  the  company,  and  that  the  servants  in 
charge  of  the  drawing-room  cars  are  its  servants. 
Otherwise,  there  would  be  two  separate  contracts  in 
the  case  of  each  passenger  in  these  cars,  one  with  the 
company  and  one  with  Wagner.  Such  a  condition  of 
things  would  involve  a  confusion  of  rights  and  obli- 
gations, and  divide  a  responsibility  which  ought  to  be 
single  and  definite.  Take  the  case  of  a  passenger  in 
a  drawing-room  car,  who  should  be  burned  by  the  neg- 
ligent upsettiivg  or  break! ?\g  of  a  lamp  by  the  porter, 
or  the  case  of  a  passenger  in  a  sl(M'])ing  car,  injured  by 
the  porter's  negligence.  Is  tlH»  i)assenger,  in  tHiese  or 
other  similar  cases  which  might  be  supposed,  to  be 
turned  over,  for  his  remed}',  against  Wagner,  on  the 
ground  that  the  servant  who  caused  the  injury  was  his 
servant,  and  not  the  defendant's?  The  public  interest 
and  due  protection  to  the  rights  of  passengers  r(H|uire 
that  the  railroad  comjiany,  which  is  exercising  vhe 
franchise  of  ojx-rating  the  !'oa<l  for  the  carriage  of  pas- 
sengers, should  be  cliarg'  '  with  and  responsible  for 
the  management  of  tlu'  t.;.in,  and  tliat  all  pr'rsons  cm- 
ployed  thereon,  should,  as  to  passengers,  be  deemed  to 
be  the  servants  of  the  cori)oration." 

fc)  Or  the  carrirr  nidi/  use  in  tJif  course  of  the  joiiriiq/ 
the  station  or  UnuliiKj  phirc  of  Kiiotlirr  carrier.  Where  a 
passenger  on  defendant's  train  slipped  upon  some 
l»ieces  of  ice  on  the  station  platform  and  injured  him- 
self, it  was  held  that  it  was  (he  defendants  duty  to  see 
that  the  platform  was  safe  for  its  passengers,  n^gard- 
less  of  the  fact  tliat  the  building  and  platform  were  not 
owned  by  it,  but  by  another  com^iany.* 

1  Seymour  r.  It.  Co.,  3  liias.  43;  and  svo 
Gruber  f.  U.  Co.,  92  N.  O.  1, 

426 


CH.  XIX.]     RESPONSIBILITY  FOR  ACTS  OF  OTHERS. 


§294 


(d)  Or  he  may  do  a  portion  of  the  service  for  others. 
Where  a  railroad  receives  upon  its  track  the  cars  of 
another  carrier,  placing  them  under  the  control  of  its 
agents  and  servants,  and  drawing  them  by  its  locomo- 
tives over  its  own  road  to  their  place  of  destination, 
it  assumes  towards  the  passengers  coming  upon  its 
road  in  such  cars  the  relation  of  a  carrier  of  passen- 
gers, with  all  the  liabilities  incident  to  that  relation.* 
So,  where  a  carrier  by  water,  chartei'cd  one  T  his  boats 
to  another  carrier  for  a  single  trip,  but  retained  charge 
of  it,  and  navigated  it  with  his  own  master  and  crew, 
he  was  held  liable  to  a  passenger  upon  this  trip.^ 

§  291.  Where  Third  Parties  Use  Carrier's  Means 
of  Transportation.— Where  a  railroad  permits  others 
to  use  its  line  or  means  of  trausportation,  it  is  liable  to 
passengers  for  the  negligence  of  such  others.''  The 
reason  is  that  the  carrier  who  has  been  invested  with 
his  franchise  for  public  pur])oses,  cannot  be  permitted 
to  derive  a  prolit  therefrom  at  an  enhanced  risk  to  his 
passetigers,  without  additional  responsibility.^  In  a 
Missouri  case,"'  where  this  principle  was  applied,  an 
action  was  brought  against  a  rail  ;'oad  for  injuries  to  a 
person  not  a  passenger,  through  the  negligence  of  one 
M,  to  whom  the  railroad  comi)any  had,  by  contract, 
•lelegated  the  entire  charge  and  control  of  its  freight 
business  at  the  St.  Louis  station.  In  the  course  of 
this  work  the  servants  of  M  negligently  backed  a  car 
against  the  jilaintilT.  The  railroad  was  held  liable. 
"IJe  (M),"  said  the  court,  "was  transacting  a  part  of 


f 


>  8chopninn  r.  'R.  Co.,  9  Cnsli.  24;  BS 
/iiii.  Di'c.  42;  ClyiiHTi-.  It.  Co.,  5  lUiitchf. 
817;  Niishvlllc  rlc.  K.  Co.  r.  Ciinoll,  r, 
Heisk.  ;^47;  Kli-Klifi-  r.  K.  Co.,  1  Allen,  '.». 

S  Cainplicll  !•.  IVrkins,  8  N.  Y.  4:i(l. 

•I  niinoii  I'.  I{.  Co.,  1  Hiss,  45.i;  Hailroad 
Co.  V.  Uurrun,  6  WttU.  UU;  McKlruy  v.  IC 


Co.,  4  Cnsh.  400;  80  Am.  Dec.  796;  Mobile 
ftc.  H.  Co.  r.  Mayes,  49  «ia.  il85;  Vnnett 
f  Foster,  1  Daly  IDOj  Oarilnerr.  Smith,  7 
Mieh.  4J2. 

4  'riioiiip.  Carr.  I'ass.,  414. 

•'  Speed  V.  K.  Co.,  71  Mo.  303. 

427 


msLii 


Tr^ 


•^ 


:'3 


r- 

'T-?* 


§  295  RESPONSIBILITY  iJ'OR  ACTS  OF  OTHERS.    [PART  III. 

the  business  of  the  company,  a  common  carrier,  not 
as  a  lessee  of  the  road  and  rolling  stock,  or  either,  but 
simply  in  loading  and  unloading  freight  which  the 
company  transported  as  a  common  carrier.  As  a  com- 
mon carrier,  the  law  imposes  certain  obligations  and 
liabilities  upon  the  defendant,  of  which  it  is  extremely 
doubtful  whether  it  can  relieve  itself  while  it  continues 
to  be  a  common  carrier,  by  any  agreement  with  a  third 
person.  The  doctrine  might  well  apply  that,  where 
the  law  imposes  a  liability  upon  a  company,  in  which 
it  vests  a  franchise  with  exclusive  privileges,  it  can- 
not escape  responsibility  by  delegating  to  others  the 
power  to  transact  a  portion  of  the  business  in  which  it 
is  engaged,  if  the  business  to  be  transacted  by  the  em- 
l)l()yee,  be  but  a  Dart  of  the  general  business  in  whhh 
the  ccmipany  is  engaged."  Where,  however,  auothcr 
railroad  uses  the  carrier's  line  under  statutory  author- 
ity, and  without  his  coufsent,  the  latter  is  not  liable  for 
its  negligence/  though  if  the  carrier  himself  be  negli- 
gent, the  fact  that  the  other  railroad  was  also  negli- 
gent, will  not  save  him  from  liability.' 

§  295.     Where  Line    in    Hands  of   Trustees.— A 

railroad  company  has  no  power  (in  the  absence  of  ex- 
press authority')  to  mortgage  its  franchise  or  line.* 
Where,  however,  the  uiortgage  has  been  legally  author- 
ized, and  the  trustees  thereunder  have  taken  posses- 
sion of  the  property  of  the  railroad,  it  is  not  liable  for 
the  negligent  acts  of  the  trustees  or  their  servants  or 
agents,"  but  the  trustees  are  in  such  case  liable." 


1  Thomas  r.  R.  Co.L.  II.  5  Q.  B.  226; 
L.  Ft.  (!y.  «.  2iK;  WriKht  v.  It.  Co.,L.  K. 
hKx.  137;  Taylor  f.  H.  Co.,  L.  K.  I  C.  P. 

2  McKlroy  v.  K.  Co.,  mpra. 

3  iiivcn  the  power  to  inortKiiKU  its  road 
it  limy  iiiort«attc  any  part  of  it.  I'nllan 
f.  K.  Co.,  4  Itiss.  ?.i5. 

*  (.0111.  r.  Smith,  10  Allun,  488;  87  Am. 

428 


Dec.  672;  Jlichanlson  r.  •Sibley,  11  Allen, 
65;  87  .\in.  Dec.  7(10;  ("iirpenlcr  r.  Mining 
('o.,6.')X.  Y.  4;i;  Atkinson  v.  R.  Co.,  IB 
Ohio  St.  21. 

«  state  r.  U.  Co.,  67  Me.  479. 

«  Spnwie  f.  Smith,  2'.»Vt.  4il ;  70  Am. 
Dee.  424;  Smitli  r.  I{.  Co.,  124  Ma--.  iriT; 
l.inncid  f.  U.  Co.,  10  Ctish.  f>(>2;r>7  Am. 
Dec.  124 ;  MiCall  r.  Chamberlain,  13  Wis. 


CH.  XIX.]    LESPONSIBILITY  FOR  ACTS  OF  OTHERS. 


295 


A  railroad  company  in  tlie  hands  of,  and  operated  by 
a  receiver,  or  assignee  in  banla'uptcy,  is  not  responsible 
for  .  u  negligence  of  the  receiver  or  his  agents  or  ser- 
vai  t-v       The  possession  of  the  receiver  is  not  regarded 
as  the  possession  of  the  company,  but  rather  as  the 
possession  of  the  court  which  appointed  him;^  and  as 
the  possession  has  been  taken  from  the  company  and 
its  control  given  to  another  over  whom  it  has  no  con- 
trol, the  latter  should  respond  for  any  injuries  which 
he  or  his  agt^nts  or  .servants  may  commit.''     "A  receiver 
appointed  by  a  court  of  equity  to  hold,  manage,  and 
operate  an  insolvent  railroad  is  not  the  agent  of  the 
insolvent  railroad  cr rporation,  and  is  not  a  substitute 
for  the  board  of  directors.     He  is  but  the  hand  of  the 
court   appointing  him,  and  holds,   manages,  and  op- 
erates the  property  under  the  orders  and  directions  of 
the  court  as  its  custodian,  and  not  for  or  under  the  con- 
trol of  the  directors  or  sliareholders  of  the  corporation. 
ITis  management  is  for  the  benefit  of  those  ultimately 
entitled  under  decree  of  the  court.     His  acts  are  not 
the  acts  of  the  corporation,  and  his  servants  are  not 
the  agents  or  servants  of  the  corporation.       The  re- 
ceivers, as  such    are  liable  for  their  negligent  acts, 
lioth  to  the  pubiM  and  to  employes,  they  stand  respon- 
sible to  the  full  extent  of  the  earnings  resulting  from 
their  management,  and,  under  some  circumstances,  the 
property  itself  nmy  constitute  a  fund  which  may  be 
reached  and  subjectcnl   by  those  sustaining  injuries. 


641 ;  HBrttT  r.  Whci-ltT,  4!t  N.  H.  0;  fi  Am. 
Itcp.  434  ;  KoRcrs  r.  Whi'dcr,  4H  N.  V.  (>'.« ; 
l.timpliiuT  t'.  KiK'kinKliaiii,  ,'1.1  Coun.  2H7. 
See  Kiilinn  f.  Kuriimn,  it  AlU'ti,  47. 

1  Tiinifrr.  U.  Co.,  70  Mo.  (;().(;  Kiiin  r. 
Smith, HO  N,  Y.  473;  Hell  f.  U.  Co.,  .53  Intl. 
6H;  Memphis  etc  U.  Co.  r.  Straiiii?fcll'nv, 
44  Ark.  ,322;  Sliito  r.  K.  Co.,  H.'i  Ind.  4fif); 
17  N.  E.  Ucp.  909;  CJodficy  r.  It.  Co.,  116 
Ind. HO;  Itj  N.  K.  Kup.61;  Daws  v.  Duncan, 


1!»  Fed.  Rep.477;Thuniani'.  R.  Co.,66Ga. 
.376;  Railroad  (?o.  v.  Humphreys,  146  U. 
8.  82. 

2  Ohio  etc.  R.Co.  v.  Davis.  23  led.  663; 
W)  Am.  Dec.  477. 

•!  IJluiiiciithal  I'.  Rrainord,  38  Vt.  402; 
91  Am.  Dec.  ,349;  Melz  v.  R.  Co.,  6S  N.  Y. 
61;  17  Am.  Rep.  '"'I ;  McaiiiD.  iloIland.2n 
Ohio  St.  "'■•■.  I'aiKi-  !•.  ,Smith,99  Mass.  376; 
Smith  V.  ...  Jo.,  124  Mass.  157. 

429 


m\ 


r*^ 


§  296 


RESPONSIBILITY  FOR  ACTS  OF  OTHERS.    [PART  III. 


.«.-t  -^ 

9 


■i-r.i* 


But  we  know  of  no  legal  principle  which  would  justify' 
a  court  in  holding  a  corporation,  which  is  excluded 
from  all  control  and  management,  responsible  for  the 
torts  of  such  receivers,  or  for  the  negligent  acts  of  their 
servants.  The  relation  of  master  and  seiTant  does  not 
exist  between  the  excluded  corporation  and  the  ser- 
vants of  the  receivers.  If  the  possession  of  the  re- 
ceivers be  exclusive,  as  was  the  case  under  the  decree 
appointing  them,  the  corporation  can  neither  employ, 
discharge,  nor  control  such  servants;  and  it  would  be 
a  gross  injustice  to  say  that,  under  such  circumstances, 
it  should  be  liable  for  the  conduct  of  servants  which 
it  neither  employed  nor  controllotl."^  It  i«,  of  course, 
in  his  representative  capacity,  and  not  personally,  that 
the  receiver  is  liable  for  the  acts  of  his  employes,-  and 
he  can  be  sued  only  in  his  official  character  in  the  court 
where  he  is  appointed  or  in  any  other  court,  by  the 
leave  of  the  appointing  court.^ 

§  296.  Where  Line  in  Hands  of  Lessees,  Pur- 
chasers, or.  Others. — A  railroad  cannot  escape  re- 
sponsibility by  leasing  its  line  to  another  corporation, 
and  where  such  a  lease  is  made,  either  lessor  or  lessee 
may  be  sued  for  injuries  i'et;eived  through  the  negli- 
gent operation  of  the  road  by  the  lessee.*  To  allow 
the  lessor  to  escape  responsibility  in  this  way  would 


1  Memphis,  etc.  U.  Co.  i'.  Uoechner,  67 
Fed.  Rep.  45fi. 

2  (^arilotr.  Harney,  ti3  X.  Y.  2S1 ;  20  Am. 
Uep.  5;!S;  Camp  v.  Barney,  4  Uun,  37:i; 
Uttle  r.  Uusenberry,  4G  N.  J.  (I..)  614;  60 
Am.  Ucp.  446;  Hopkins  v.  Oonnell,  2 
Tenn.  Ch  323;  Hrownti.  Brown,  n  Tex. 
355;  e.r  port*  Brown,  15  S.  C.  518;  I'opo's 
("ase,  .SOFed.  Hop.  169;  Winbonrns  Case, 
30  Fed.  Hep.  167 

S  Thompson  t'.  S»rott,  4  Dill.  508;  Davis 
V.  Gray,  16  Wall.  203;  I'nrker  v.  Brown- 
ing, 8  Paine,  .388;  .S5  Am.  Dec.  717;  Uealh 
V.  B.  Co. ,  83  Mo.  617 ;  Oraffenreid  v.  li.  Co., 

430 


57  Ga.  22;  Kennedy  r.  R.  Co.,  3  Fed.  Rep" 
97. 

4  Railroad  r.  Barron,  5  Wall.  00;  York 
etc.  R.  Co.  r.  Winans,  17  How.  30;  West. 
etc.  R.  Co.  t'.  Brown,  17  Wall.  445;  Free- 
man r.  R.  Co.,  28  Minn.  44.^;  ('hieat;o  etc, 
R.  Co.  f.  Whipple,  22  111.  lf,.'i;  Nelson  v. 
R.  Co.  26  Vt.  71";  62  Am.  Dee.  614;  Rook- 
ford  etc.  R.  Co.  r.  Ileflin,  65  111.  306;  111. 
Cent.  R.  Co.  v.  FinneKan,  21  111.  64s;  Hay 
City  etc.  R.  Co.  r.  Anstin,  21  Miih.  .T.X); 
Liddle  i-.  R.  Co., 23 la.. 377;  Rickerts  r.  R. 
C'o.,10.South.  Rep.  801  (W.  Vu.);  Gard- 
uer  V.  B.  Co.,  L.  R.  2  Cii.  201. 


CH.  XIX.]     KESP0N8IBILITY  FOR  ACTS  OF  OTHERS. 


§296 


tempt  him  to  put  his  road  in  the  hands  of  persons  of 
no  responsibility.*  "It  cannot  escape  the  performance 
of  any  duty  or  obligation  imposed  by  its  charter  or 
the  general  laws  of  the  state,  by  the  voluntary  surren- 
der of  its  road  into  the  hands  of  lessees.'"-  Where, 
however,  the  lease  is  made  under  an  express  power 
given  by  the  legislature,  the  lessor  is  not  liable  for  the 
negligent  acts  of  the  lessee,"'  unless,  notwithstanding 
the  lease,  it  continues  to  operate  the  road,*  or  allows 
it  to  be  operated  in  its  corporate  name."^  Though  the 
law  as  laid  down  in  the  last  sentence  is  supi)orted  by 
the  authorities  there  cited  and  probably  by  others,  yet 
it  is  denied  in  a  number  of  cases  that  a  mere  power 
given  by  the  State  to  a  railroad  to  lease  its  line,  ab- 
solves the  lessor  from  any  further  liability.''  This  view 
is  vigorously  supported  in  a  late  case  in  North  Caro- 
lina,^ where  the  court  say:  "It  is  contended  that  the 
authority  to  lease  being  conceded,  its  exercise  by  neces- 
sary implication  absolved  tjie  lessor  company  from  all 
liability  during  tllie  term,  for  injuries  caused  by  the 
negligence  of  the  lessw^  in  operating  it.  Is  such  an 
implication  necessarily  involved  in  the  grant  of  power 
to  lease?  Or  must  it  appear  that  the  State  has,  in 
express  terms,  released  the  lessor  from  the  duties  and 


1  Nelson  r.  U.  Co.,  2f.  Vt.  717;  f.2  Am. 
Due.  CU.  "If  sui'ti  IciiM's  iiiiiy  he  uiailo 
ami  the  oirt'ct  claiincj  ri'stilts  from  tlioiu, 
railioads  may  avoid  all  liability  to  the 
public.  .\iid  it  such  leases  should  be  to 
irresponsil)le  persons,  the  remedies  for 
wrongs  inflicted,  duties  omitted  and  con- 
tracts violated  by  the  lessee  would  not  be 
worth  pursuing."  Ohio  etc.  U.  Co.  v. 
Dnubur,  20  Ul.  (>28. 

i  West.  etc.  It.  Co.  f.  Brown,  17  Wall. 
415;  Stevens  v.  Dawson,  18  Gratt.  819;  98 
Am.  Dec.  692 ;  Troy  etc.  U.  Co.  v.  Kerr,  17 
Barb.  B8I;  Abbott  v.  11.  Co.,  80  N.  Y.  27; 
16  Am.  Uep.  572;  Ulaek  v.  Canal  Co.,  22 
N.  J.  (K(i.)  399;  Lakiu  v.  K.  Co.,  13  Orcg. 
416;  67  Am.  Uep.  26. 


3  Mahoney  v.  K.  Co.,  6:^  Me.  68;  Ditch- 
cttt'.  U.  Co.,  67  X.  Y.  425;  Linlleld  v.  U. 
Co.,  10  Cush.  r)ti2;  57  Am.  Dec.  124; 
Arrowsmilh  1'.  U.  Co.,  57  Fed.  Uep.  178; 
Byrne  r.  U.  Co.,  61  Ked.  Uep.  605;  con- 
tra, f^'mpivUiu  v.  I{.  Co.,  70  ti.'i.  464;  and 
see  Whitney  r.  U.  Co.,  44  Me.  362;  69  Am, 
Dec.  10.!.  The  statutes  of  the  states  gen- 
orally  allow  the  leasing  of  other  roads. 
See  I-awson  Uiglits,  H.  *  I'r.  §  549. 

4  Hallou  f.  Karuum,9  Allen, 47. 

s  IJowerr.  U.  Co,,  42  la.  646;  Singleton 
V.  U.  Co.,  supra. 

6  1  Spell.  I'riv.  Corp.  §  136. 

7  Logan  V.  U.  Co.,  21  N.  E.  Rep.  959. 


431 


fp^ 


d 


■i::^ 


§  296  RESPONSIBILITY  FOR  AOTS  OF  OTHERS.    [PAllT  III. 

obligations  which  devolved  upon  it  in  its  very  creation, 
and  which  constituted  the  consideration  for  clothing 
it  with  nominal  corporate  powers?  Upon  this  ques- 
tion the  autlliorities  are  conflicting,  and,  as  it  is  pre- 
sented for  th'e  first  time  here,  it  is  our  privilege  and 
our  duty  to  be  governed,  not  by  the  number  of  cases 
cited  on  tlie  one  side  or  the  other,  but  rather  by  the 
soundness  of  the  reasoning  upon  which  they  rest. 
After  conferring  upon  a  corporation  the  right  of  emi- 
nent domain,  with  many  other  special  privileges  which 
the  legislature  is  empowered  to  grant  only  in  consid- 
eration of  its  duty  and  obligation  to  serve  the  people 
by  affording  them  the  means  of  safe,  as  well  as  spee^ly 
transportation  for  themselves  ami  their  property,  the 
State  cannot  be  held  to  have  abdicated  its  right  to  i)ro- 
tect  the  patrons  of  the  road,  who  are  under  its  care, 
by  the  strained  construction  of  a  naked  power  to  lease. 
Such  a  power  does  not  carry  with  it  the  authority  to 
the  lessor  to  absolve  itself,  and  transfer  its  duties  and 
obligations  to  another,  whether  able  or  unable  to  re- 
spond in  damages  for  its  wrongs  or  defaults.  As  we 
have  intimated,  the  decisions  of  the  courts  of  different 
States,  iind  sometimes  those  of  the  same  States,  are 
conflicting,  and  we  do  not  pretend  to  be  governed  by 
the  greater  number,  but  the  greater  weight  of  the  rea- 
sons given  to  sustain  them.  No  matter  how  many 
leases  and  subleases  may  be  made,  the  law  attaches 
to  the  actual  exercise  of  tlie  privilege  of  carrying  pas- 
sengers and  freight,  the  compensatory  obligation  to 
the  public  to  use  ordinary  care  for  the  safety  both  of 
persons  and  property  so  transported.'  On  the  other 
hand,  the  carrier,  who  simply  substitutes,  with  the  con- 
sent of  the  State,  another  in  his  place,  cannot  establish 
his  own  right  of  exemption  from  responsibility  for  the 

1  Spel.  l*riv.  Corp.  g  134. 
4J2 


ClI.  XIX.]     UESPONSIBILITY  FOR  ACTS  OF  OTHERS. 


§296 


wroiiji^s  of  the  substitute,  unless  he  can  show  not  only 
explicit  authority  to  lease  the  property,  but  to  rid  him- 
self of  such  responsibility.^  AVherc  the  legislature 
gives  its  express  sanction  to  the  release  of  the  lessor 
company  from  liability,  there  can  be  no  question  that 
it  is  exempt.-  Of  the  two  or  three  reasons  assigned 
for  holding  that  the  lessor  company  is  liable  for  the 
torts  of  a  lessee,  where  it  has  legislative  authority  to 
demise  its  road,  but  there  is  no  express  ])rovision  for 
its  own  exemi)t'ion,  we  prefer  to  rest  our  ruling  u])0u 
the  ground  that  the  original  grant  of  extraordinary 
privileges  still  carries  with  it  a  correlative  obligation 
to  perform  the  duties  which  were  in  contemplation  of 
the  State  and  the  corporation  when  the  charter  was 
enacted.  The  legislature  is  warranted  in  granting 
such  exclusive  privileges  only  in  consideration  of  ser- 
vices to  be  rendered  to  the  public.  While  the  comi)en- 
satory  obligation  to  use  ordinary  care  in  i)roviding  for 
the  safety  of  persons  and  i)roperty  committed  to  its 
care  as  a  carrier,  inheres  in  and  attaches  to  the  exer- 
cise of  the  coriKirate  rights  by  the  lessee,,  we  think  that, 
without  the  express  sanction  of  the  legislature,  the 
lessor  is  not  relieved  by  any  implication  arising  out 
of  the  general  power  to  lease,  but  still  reinains  sub- 
ject to  its  original  liability.  When  the  State  exercises 
its  supreme  and  exclusive  power  in  delegating  to  a 
corporation  the  right  upon  the  ])ayment  of  just  com- 
ix'usation  to  take  it  for  public  pur])ost^,  the  company 
holds  its  interest  in  the  land  solely  for  corjjorate  pur- 
l)0ses,  and  subjwt  to  the  nght  of  the  sovereign,  if  it 
fail  to  discharge  its  public  functions,  to  institute 
]U'e-per  proceedings,  and  have  it  dissolve<l.  In  case  of 
dissolution,  it  seems  that  the  i)ropei'ty  and  franchise 


i  Singleton  r.  U.  ('o.,«u;>ro. 
29 


2  liraslin  t.  U.  Co.,145Mass.  C4;  13  K. 
E.  lU'p.  65. 

433 


§  296  RESPONSIBII-ITT  FOK  ACTS  OF  OTHERS.    [PART  III. 


■•*■' J 


.j 


■•Vw. 


may  be  sold  for  the  benefit  of  creditoi's,  and  devoted 
to  the  same,  or  diverted  to  some  other  public  i)uq)Ose, 
and  that  there  is  a  bare  possibility  of  reverter.     Where 
the  interest  of  the  lessor  coni])any  in  the  laud  con 
demned  is  limited  to  the  rij^ht  to  use  for  coi'])orate 
puriK)ses,  and  its  franchise,  which  fretpHMitly  expires 
in  a  term  of  years,  is  subject  to  forfeiture,  in  case  «if 
misuser  or  uonuser  of  its  powers,  we  fail  to  trace  any 
such  analo<j;v  between  it  and  its  lessee  as  exists  be- 
tween  a  landlord,  who  is  owner  of  the  fee,  and  his 
lessee  for  years.       Yet,  upon  thrs  supposed  analo^ry, 
many  of  the  courts  have  held  that  the  liability  of  llie 
railway  company  that  demises  its  road,  like  that  of  a 
landlord,  extends  no  further  than  the  oblii^ation  to  use 
ordinary  care  in  keepinj;  the  track,  roadbed,  ri}j;ht  of 
way,  station  houses,  and  other  permanent  structures 
in  such  condition  that  the  safety  of  the  public  will  not 
be  imperile<l  by  them,  while  the  lessee  is  solely  answer- 
able   for    injuries    caused    by    uej^li^ence    in    ruiiirmj; 
trains,  or  the  use  of  defective  nuichinery.     A  i)an  <jf 
the  orif^inal  oblij;ation  of  the  lessor  company  to  the 
l>ublic  was  to  furnish  such  trains  and  other  ai)pliauce.s 
as  would  be  necessary  to  provi<le  for  the  safety  of  the 
passenj^ers  as  well  as  tlie  employes  who  should  travel 
on  its  cars,  and  we  see  no  reason  why  that  duty  should 
not  exist,  like  that  to  look  after  the  roadlxnl,  till  the 
lejiislature,  for  the  sovereign,  declares  the  lessor  ab- 
solved from  it." 

The  purchasers  of  a  railroad,  take,  with  all  its  as- 
sets, the  liabilities  of  the  road,  for  previous  personal 
injuries;'  but  if  the  purchase  be  made  under  judicial 
proceedings,  as  at  a  judicial  sale  under  a  foreclosure 
of  a  mortgage,  the  rule  is  difTerent.- 

1  Riiilroart  V.  nniinjr,  Bl  Ga.  fiH2.  And 
the  ii-si(fiior  is  not  of  fOTirsc  liable  for 
Bubsi-qiK'nt  injuries.  Wi'llsborough  etc. 
Co.  V.  (iriffln,  .17  I'u.  St.  417. 

2  Metz  r.  It.  Co.,  58  N.   Y.  61;  17  Am. 

434 


Krp.  201.  The  pnrrhnser  may  howpvcr 
be  iimUc  liiilili-  bv  >tatuti'.  .'^tr/Jiiis  »■(<•. 
K.Co.  V.  Miller,  43  Ml.  VM:  Uatchir  v.  H. 
Co.,  62  ni. 477. 


on.  XIX.]     RESPONSIBILITY  FOR  ACTS  OF  OTHERS. 


§297 


"And  there  can  be  no  question  tliat  a  more  intruder 
into  the  franchise  of  a  railway  corporation,  v\ho  should 
continue  to  use  it  for  his  own  bouolit,  would  be  liable 
to  passengers  and  the  owners  of  frei<;ht,  who  should 
employ  him,  to  the  .same  extent  precisely  as  the  com- 
pany itself,  while  continuing  the  .same  busine^vs.'" 

§  297.    Liability  of  Master  for  Acts  of  Servants. 

— It  is  a  well-known  princi])le  that  a  master  is  civilly 
resi>ousible  for  the  acts  of  his  servants  which  cause 
injury  to  third  pei^on«.-  This  priiicii>le  is  expressed  iu 
the  maxim  rcNjmndnif  .superior,  and  is  subject  to  the 
following  qualifications  and  explanations,  viz.: 

Qual.  1.  The  act  which  caused  the  injury  must  have 
been  Avithin  the  scope  of  and  done  in  the  cxercisi^  of 
the  authority  given  either  ex])ressly  or  impliedly,  to  the 
servant  bv  the  master.^ 

Illustrations. 

I.  A  orders  his  servant  B  to  take  his  A's  liorse  and  drive  to  a  certain 
place.  B  executes  tlie  order  and  I  lien  drives  to  auottier  jilace  on  some 
business  of  liis  own,  and  wliile  so  driving  uefiliftenlly  injures  a  person. 
A  is  not  lial)le.  * 

II.  A  orders  liis  servant  to  build  a  tire.  Instead  of  doing  so  he 
attoin])ts  to  clean  oi  t  a  cliimney  and  burns  down  a  house.     A  is  not  lial)le.* 

III.  M  is  enii)loyed  by  a  sleeping  car  (•unii)aiiy  us  j)orter  on  a  car. 
While  passing  a  station  he  throws  a  bundle  of  his  own  clothes  out  of  the 
car  window,  having  arrangecl  i)reviously  willi  a  friend  to  be  on  hand  and 
receive  them.  Tlie  bundle  strikes  a  jxTson  (not  a  passenger)  wlio  is 
standing  on  the  station  platform.     The  company  is  not  responsible." 

In  case  I.  the  injurious  act  of  B  was  not  within  the 
scope  of  his  authority,  which  was  to  drive  on  one  par- 


1  Spraffuer.  Smith,  29  Vt.  421;  70  Am. 
Dec.  ■124. 

2  It  is  too  elomentai'y  to  require  a  citation 
of  any  of  the  ifri'iit  mass  of  decisions  in 
wrhich  it  is  r.  ;ognizt'(i.  The  anthorities 
may  be  found  collected  in  Laws.  Rights, 
R.  &  I'r.  §  291. 

3  Towaudu  Coal  Co.  t'  Heeman,  86  Pa. 
St.  418;  Aycrigg  v.  U.  Co.,  30  N.  J.  (U) 
460;  Oxford  r.  Peter,  28  111.  434;  Golden  v. 


Xewbrnnd,  52  la.  59;  Af,  Am.  Rep,  207; 
StoUL- c.  Hills,  45  Conn.  44;  29  Am.  Re4). 
«35. 

4  Sheridan  r.  Charlock,  4  Daly,  338; 
M:uld()\-  V.  Urowii,  71  Me.  4.r2;  36  Am. 
Rep.  3;i6;  Cavanaugh  v.  Uiusmore,  13 
nnn.  465. 

.1  McKenzie  f.  McLcod,  10  Ring.  385. 

6  Walton  V.  R.  Co.,  139  Mass.  636. 

435 


§297 


RESPONSIBILITY  FOR  ACTS  OF  OTHERS.    [PART  III. 


'.d 


'T-S* 


r 


Id 


ticular  errand,  nor  was  it  done  in  the  exercise  of  that 
authority,  but  after  the  authorit}-  had  been  executed. 
In  case  II.  it  was  said  by  Ahlersou,  J.,  tliat  where 
something  is  directed  to  be  done,  and  tlie  manner  of 
doing  il  is  left  wholly  (o  tlie  discretion  of  the  servant, 
the  judgment  exercised  by  him  in  doing  il  is  the  judg- 
ment of  the  nuister,  aiwl  the  latter  is  liable  for  it.  "Hut 
where  he  has  neither  ordered  the  thiug  to  be  dt)Ue  nor 
allowed  the  servant  any  discretion  as  to  the  mode  of 
doing  it,  I  cannot  see  how,  in  common  justice  or  com- 
mon sense,  the  master  can  be  held  resi)onsible."  In 
case  III.  the  court  said;  "There  was  no  evidence  that  M 
was  employed  by  the  defendant  to  take  care  of  his 
own  clothing  and  jiersonal  effects.  The  act  com- 
plained of  was  not  within  the  scope  of  his  employment, 
and  it  is  wludly  immaterial  that  he  was  at  the  moment 
rilling  on  a  car  of  the  deHMidant,  in  which  he  was  em 
ployed  by  it  for  other  purposes." 

/■Jriil.  1.  If  the  case  falls  within  qual.  1,  it  does  not 
affect  the  master's  liability,  that  he  did  not  order  or 
know  of  the  doing  of  the  act. 

Tllnsfration. 

I.  Tlie  servants  of  a  fanner  are  workiii;;  in  a  tield.  A  cow  lircnks 
throiijjh  a  fence,  ami  one  of  ilieni  in  driving;  tlio  animal  o\x\  kills  it  with  a 
stoue.     The  master  is  liable.' 

In  case  I.  it  was  held  that  the  act  of  driving  out  the 
cow  Avas  clearly  within  the  implied  authority  of  the 
servant.  "To  do  such  an  act  for  the  preservation  of 
a  growing  crop,  every  fanner  would  reasonably  contem- 
plate and  have  a  right  to  expect  as  a  matter  of  duty 
from  the  servant.  *  *  ♦  Therefore,  the  fact  that 
the  master  gave  no  express  direction  as  to  driving  out 
the  cattle,  und  did  not  know  of  their  being  in  it  until 

1  Kvans  t'.  Davidson,  63   Md.  245;   36 
Ani.  Uep.  401. 

436 


on.  XIX.]     RESPONSIBILITY  FOU  ACTS  OF  OTHERS.  §  297 

after  the  doing  of  the  injury  complained  of,  will  not 
avail  to  exonerate  the  master."  So,  if  the  carrier's 
servant  malccs  a  mistake  in  the  carrying  out  of  his 
orders,  the  carrier  is  liable  for  the  consequences,  as 
where  the  passenger  tenders  the  legal  fare  which  the 
conductor  erroneously  thinks  not  enough,  and  ejects 
him,'  or  the  conductor  thinks  he  has  not  paid  his  fare 
when  he  has;-  or  the  station  superintendent  ini.stak- 
ingly  believes  a  i)assenger  is  a  person  soliciting  cus- 
tom."' 

Expl.  2.  Nor  that  in  doing  the  act,  or  in  carrying 
out  the  master's  orders,  the  servant  was  acting 
contrary  to   the  express   commands  of   the  master.^ 

Illustrations. 

I.  An  omnibus  coniiniiiy  l).v  written  instructions  orders  its  drivers 
in  no  case  to  race  witli,  inoiost  or  ol)slruct  any  otiicr  onniil)Us.  A  driver 
obstructs  anotlier  omnibus  witli  tlie  result  tliat  it  is  upset  and  injured. 
Tlie  oninil)us  comitany  is  liai)le  to  tlie  owner  of  tlie  injured  oinnilius.* 

II.  A  Ivcpt  a  jiun  store  and  U  was  liis  cleric,  who  liad  been  ortiered 
never  to  load  a  ttun  in  tlie  store.  A  beinj;  ai)sent,  IJ  in  sliowins;  a  gun  to 
a  custouier  loaded  it  and  it  was  accidentally  discliarged,  wouudiug  C. 
A  was  held  liaijlC* 

In  case  I.  the  court  said  that  although  the  driver  had 
acted  in  tiat  disobedien«'e  to  his  express  orders,  yet  he 
had  acted  in  the  course  and  scope  of  his  employment. 
In  case  II.  it  was  said:  "B  was  uufjuestionably  aiming 
to  execute  the  order  of  his  principal  or  master.  lie 
was  acting  within  the  scope  of  this  authority  and 
engaged    in    furtherance    of    his    master's    business. 


1  Cinn.  etc.  R.  Co.  i:  Cole,  29  Ohio  St. 
126;  23  Am.  Kcp.  72',». 

«  Mooro  V.  U.  Co.,  i  Gray,  4G5;  64  Am. 
Dec.  8.^. 

S  Hull  V.  Power,  12  Mete.  482. 

*  Powt  ilr.  Deveney,3Cnsh.  300;  BO  Am. 
Deo.  738;  naneJi  v.  Fearing,  5  Kobt.  628; 
86  How.  Pr.  459 ;  Garretzen  v.  Duenckel, 


Kstes,  7  Ciish.  .185 ;  PtiRRins  r.  Watson,  15 
Ark.  IIH;  I'aiilmicr  i:  U.  fo.,  34  N.  .J.  (L.) 
I.')!  ;  Toledo  etc.  K.  Co.  c.  Harmou,  47  111. 
298;  llijijrins  v.  K.  Co.,  46  N.  V.  23;  Minter 
f.  K.  Co.,  41  Mo.  503. 

!i  Limpus  f.  Luudon  Gen.  Ora.  Co.,  32 
L.J.  (Kx.)  34. 

6  (Jnrretzen  r.  Duenckel,  50  Mo.  104;  11 


SO  Mo.  104 ;  11  Am.  Uep.  405 ;  South  wick  v.       Am.  Uup.  406. 


437 


S297 


KESFONSIIJILII  Y  K()K  ACTS  OF  OTIIKKK.    [PART  III. 


•0m  ^ 

■•♦"I 


TIh'1'0  is  no  pretense  that  he  was  endeavoring;  to  do 
auytliinj;'  for  himself,  lie  was  acting  in  pursuance  of 
autlioritj,  and  trying  to  sell  a  gun,  to  make  a  bargain 
for  his  master,  and  in  his  eagerness  to  subserve  his 
master's  interests  he  acted  injudiciously  and  ne"li- 
gentlj.  It  makes  no  diflerence  that  he  disobeyed  in- 
structions. Innt)cent  third  parties  who  are  injured  in 
cousecjuence  of  his  acts  cannot  be  alTecte<l  therebv." 
So  though  the  carrier  may  have  ordei'ed  his  servants  t<( 
keep  till'  station  roomw  in  fit  condition  for  passengers 
and  not  to  allow  them  to  become  otln-rwise,  yet  if  the 
servants  i>ermit  the  rooms  to  become  filled  with  tobacco 
smoke  to  the  inconAX'uience  of  a  pas.senger'  or  fail  ti» 
heat  them  in  cold  wx-ather  whereby  a  i)asseuger  takes 
cold,"  the  carrier  will  be  liable. 

Ed■l^L  3.  In  regard  to  the  wanton,  willful  or  malic 
ions  acts  (tf  the  servant,  there  is  a  contlict  of  author- 
ity. The  ohler  rule  is  that  a  servant  can  never  have 
an  implied  authority  to  commit  a  willful  act}'  op  a 
crime,''  and  even  though  he  does  it  while  about  his 
master's  bu.sinest<,  the  numter  is  not  responsible,'  unless 
be  had  previously  ordered  it  or  afterwards  ratitied  it." 
This  <loctrine  has  Ixh'U  often  criticised  and  con- 
ilemned,"  and  the  better  supi>orted  rule  is  that  a  ser- 
vant authorized  to  do  an  act,  and  acting  in  the  general 
scope  of  his  authority  in  the  master's  business,  makes 
the  master  liable  therefor,  although  he  did  so  willfully 


1  McDonald  v.  U.  Co.,  26  la.  138. 
8  Tex.  etc.  K.  Co.  f.  Cornelius,  30  S.  \\. 
Rep.  720  (Tex.). 

3  AIcManus  r.  Crickott,  1  East,  106. 

4  Vainlcrbilt  v.  Turniiike  Co.,  2  N.  Y. 
479;  61  Am.  Dec.  Sl.'i;  ItichiiioiKl  Turnpike 
Co.  r.  VandiTbilt,  1  Uill  4H1 ;  WiiKlit  v. 
Wilcox,  19  Wend.  Sii;  32  Atn.  Dec.  S07; 
Frnscr  v.  Freeman,  43  N.  Y.  5Cf>;  3  Am. 
Rep.  740;  Cavniiauf;h  v.  Diiismore,  12 
Hun,  40*t;  Hafferstown  Uk.  f.  Adams  lOx. 
Co.,46ra.  St.  41it;84  Am.  Dec.  477;  Ware 

4.18 


V.  CnnnI  Co..  1.1  I,a.  IfiO;  ,R5  Am.  Dec.  189; 
MeCoy  r.  .McKowan,  26  Miss.  4t(7;  .V.t  Am. 
Dec.  2n4. 

«  Mdore  V.  Santiorne,  2  Mich.  r>19;  B9 
Am.  Dec.  2II1I;  Hiown  v.  I'niveanee,  2  H. 
*  (i.  .116;  Lindsay  r.  (irillin,  22  Ala.  629; 
Hass  r.  U.  Co.,  39  Wis.  G.t6;  42  Wis.  654; 
Gosway  v.  U.  Co.,  BH  (in.  216. 

«  2Thomp.  N'etf.  8H6;  Reeve  Dom.  Kel. 
640;  Cooley  on  Torts,  .535:  Wood  .Mast.  A 
Sit.,  §  303. 


CII.  XIX.]      UESl'ONSiniLITY  FOU  ACTH  OF  OTUKRS.  §  207 

or  with  inalicc  towards  tlic  iiijunMl  jicrsou,'  If  he  is 
authorized  to  use  force  a;^ainNt  another,  wlien  tuh-oh- 
sary  in  exocutinj;  his  master's  orders,  the  master  eom- 
mits  it  to  him  to  decide  what  de<,n'ee  of  force  he  shall 
use;  and  if,  llirough  misjudgement  or  vioh'uce  of  tem- 
per, ho  goes  beyond  the  necessity  of  the  occasion,  and 
uses  excessive  force,  he  cannot  be  said  to  have  been 
aclinj;  without  the  line  of  his  duty,  or  to  have  departed 
from  his  nuist'er's  businesti.- 

/•>/>/.  J.  "If,  however,  tlie  servant,  under  guise  and 
cover  of  exe<'U(ing  his  nuister's  orders,  and  exercising 
the  authority  conferred  ui»(»n  him,  willfully  and  de- 
signedly, for  the  purpose  of  accomi>lishlug  his  own  in- 
dependent, malicious  or  wicked  purposes,  dctes  an  in- 
jury to  another,  then  the  master  is  not  liable.  The 
relation  of  nuisler  and  servant,  as  to  that  transaction, 
does  not  exist  between  them.  And,  where  it  is  said 
that  the  master  is  not  resi)onsible  for  the  willful  wrong 
of  the  servant,  the  language  is  to  be  understood  as  re- 
ferring to  an  act  of  positive  and  designed  injury,  not 


I  Ciirtrr  r.  1{.  ro.,W  Ind.  n.Vi;  40  Am. 
Ui'p.  "Nil;  KriiMT  r.  rici'miiii,  4:t  N.  V.BtiO; 
;t  Am.  licp.  7411;  Chicnt;"  i'l<'.  "•  <'<>•.  !•• 
liickMiii,  r,:<  ni.  1.11;  14  Am.  Ifip.  114; 
Kdiuh  V.  Ottawa,  32  ni.  I'.M  ;  83  Am.  Ore. 
•iKi:  \c\v<»rlcans  etc.  It.  Co.  r.  Allbrit- 
t()n.;!H.Miss.  242;7,'(  .\m.  l>cc.7H;  Moon-  r. 
K.  Co.,4(iray4nr);i;4  Am.  Dec.  81! ;  I'owfll 
r.  Kcvfiicy,  H  Ciisli.  HDU;  .M)  Am.  Dec.  73K; 
Ilawcsr.  KiiDWl.'s,  114  Mass.  51S;  I'.l  Am. 
Itfi).  .'W:);  llryant  f.  Itirli,  106  Mass.  IHO; 
«  Am.  Kcp.  .'ill;  Slicilcy  v.  IJilliiips,  8 
Hush.  147;  8  Am.  Kt|).  4.11;  Diut-'i'is  t' 
Watsiin,  15  Ark.  lis;  U  Am.  l>cc.  5G1 ; 
lUMldiiiK  r.  K.  Co.,  H  S.  C.  1 ;  16  Am.  Hep. 
681;  Naslivillt!  elf.  U.  Co.  f.  Starncs,  ii 
Ilcisk.  fi2;24  Am.  I{('i>.  2'.l7. 

■i  Kouiulsr.  U.  Co.,fi4  N.  Y.  l.W;  Shultz 
r.  It.  Co.,  8!)  N.  V.  242;  IIlKKins  t'-  K.  Co., 
46  N.  Y.  23;  .'^anford  v.  K.  C.,2:t  N.  Y.  343; 
Mcwitt  r.  Swift,  3  Allon,  420;  Holmes  t». 
WakclleM,  12  Alhn,  680;  Moore r.  R.Co., 
4t;ruy,  465;  Coleman  r.  R.Co.,  106  Mass. 


161);  Coll. '11  r.  U.  Co.,  60  X.  V.  170;  Chi- 
<'a;roeti-.  It.  Co.  r.  I'aiks,  18  Ijj.  4(,ll;  St. 
I.onis  vW.  H.  Co.  r.  Dalby,  l'.»  III.  .'ttH; 
Itrokaw  r.  It.  Co.,  3  Vroom,  .S28;  .Jackson 
r.  It.  Co.  47  N.  Y.  274;  Kline  r.  It.  Co.,  3!) 
(;al.  .'m7;  37ral.  40(i;  Man(iiette  v.  It.  Co., 
33  la.  562;  Carter  r.  It.  Co.,  98  In<l.  822; 
Ileiilon  V.  It.  Co.,  55  la.  4'.«i;  Johnson  r. 
It.  Co  ,  ,18  la.  318  .  Seymour  r.  Greenwood, 
7  II.  »t  N.  .'!54.  Tlu!  reductio  nil  abnurdnm 
of  the  older  rnle  applied  to  this  kind  of  a 
case  will  he  found  in  the  instruction  of  an 
niinois  trial  Jiidi;e  who  told  the  jury  that  if 
a  conductor  of  a  train  was  uuthorizetl  to 
remove  persons  who  refused  (o  pay  fare, 
and  ii>ed  only  so  much  force  as  was  nec- 
essary the  company  would  not  be  liable 
for  the  act  was  proper,  but  if  he  used  ex- 
cessive force  the  company  would  not  be 
liable  for  tlie  use  of  excessive  force  was 
the  conductor's  act  and  not  the  act  of  the 
company.  St.  Louis  etc.  It.  Co.  v.  Dalby, 
supra. 

439 


§  298 


RESPC     SIBILITT  FOR  ACTS  OF  OTHERS.    [PART  III. 


done  with  a  view  to  the  niastor's  service,  or  frr  the  pur- 
pose of  executing  his  ortlers.'" 


'^2 


XJ 

::3 


r 


§  298.  Application  of  Foregoing  Rules  as  Be- 
tween Carrier  and  Passenger. — All  the  cases  agree 
that  the  carrier  of  i)assengers  is  responsible  for  the  acts 
of  his  servants  within  the  sc()i>e,  and  done  in  the  (wcr- 
cise  of  his  delegated  authority,  and  that  it  uuittere 
not  that  the  act  was  done  without  the  knowledge  or 
orders  of  the  carrier,  or  even  c(»ntrary  to  his  instruc- 
tions;- and  that  so  long  as  the  servant  acts  within  the 
scope  of  his  eniph)ynient,  and  is  engaged  in  executing 
his  master's  orders,  the  carrier  is  liable,  whetlu'r  the 
servant's  act  be  niei'ely  negligent,  or  was  willful,  wan- 
ton and  nialif  ious."'  And  ni>i)lying  the  ])riiicii)l('.s  of 
the  last  section  (/>/)/.  .?)>  «'  carrier  of  jtasscngers  is 
liable  in  damages  for  the  act  of  his  servant — a  railroad 
conductor,  for  exainjde,  in  using  unnecessary  force,  ,ind 
comudttiug  an  assault  in  ejecting  a  [>assengvr'  for  a 


1  lloiindst'.  n.  Co.,f.4  N.  Y.  l.iO;  21  Am. 
Rep.  fW7.  This  is  sa.d  in  111.  Cciif.  U. 
Co.  V.  r.illhiim,  Hi  Soiiili  lirp.  7,")TfMiss.) 
to  bo  "an  admirable  •.tatcmi'iit  oi  tlii^ 
law." 

2  I'assciiRi'r  It.  Vu.  v.  Viniiip,  21  oliii) 
Et.  .■)!'',  H  Am.  Kep   .X 

3  I'assi'ii.ncr  II.  Ci).  r.  Vouidt,  21  Ohio 
St.  U\^\  H  .\m.  Ucp.  7s;  Iml  etc  it  Co.  v. 
Anthony,  l;{  Ind.  IH.t;  .IcIfciM.nvill.'  I'tc. 
It.  Co.  V.  Ko^'fi-s.  .W  Ind.  i;.i;  1(1  Am.  Ki'ii. 
l():i;  Ilcwi'tt  r.  Swift,  H  Allen,  42(1;  I'itti--- 
buruil.'.  It.  Co.  V.  .sliisscr,  1!)  Ohio  St. 
IST;  Mclvinh'y  r.  It.  Co.,  44  Iowa,  .SI4;  24 
Am.  Kip.  74S;  rtit>l.i',iv'h  etc.  II.  Co.  f. 
Thi'oliald,51  Ind  '2J  . ,  O-cw  v.  It.  Co..  20 
N.  V.4'.i;  NortliW'  stern  U  Co.  r.  Hack, fie 
I11.2.(H;  Qiii^tey  r.  It.  ('•!.,  II  N,-,.  XM, 
3fi,'i;  21  Am.  Iti'p.  TJT;  Atlantic  etc.  It.  Co. 
r.  Dniin,  IDOhio.St.  Ifi ! ;  2  Am.  Itop.  :W1; 
New  Orleans  etc.  K.  Co  r  llnrst,;W  .Miss. 
660:  74  Am  Dec.  7s,'i;  Itavley  i-  It.  Co.,  F.. 
It.  7  Com.  I'.  41,-);  Travers  c.  It.  Co..  tl:t 
Mo.  421  i  liultimoru  etc.  It.  On.  v.  UlocUer, 

440 


2".Md.  277;  Urownr.  It.  Co.,  Oii  Mo,  ."igS; 
Thorpe  V.  It.  ('(>.,  13, linn.  7",  .laeksuii  r. 
It.  Co.,  47  N.  V.  274;  7Am.  Itep.  4)H; 
Mo.>re  V.  It  Co.,  4  <;ray,  4^. ;  r,4  Am.  Dec. 
Hi;  Koiimlsr.  It.  Co..r,4  N  Y.  rj;>;  21  Am. 
Itep.  .V.17. 

•I  I'enn.  H.  Oo.  r.  Vamliver,  42  I'a.  St. 
;^il."i;  H2  Am.  Deer  r)2(l;  .Moore  v.  It.  Co.,  4 
(iray,4;r);  Itannden  r.  It.  Co,  l'i4  Mi^ss. 
117;  fi  Am  Itep.  2(ii  .  Waliash  etc.  r.  It.  Co 
c.K.'i'lor,  nil  111.-"..  .;  I'a^<.  If. Co.  r.Vonni;, 
2M»liioSt.  ftlH;  reekc.lt.  Co.,  7l»  N,  Y. 
r)S7;  Sanfonl  c.  It.  <'o.,23  N.  V.  :!4.l;w) 
Am.  Dec.  2wi;  2Sr,;  Knfflish  f.  U.  Co..  6ii 
N.  Y.  4.-)»;  II:in<on  c.  It.  Co.,  62  .Me.  H4 ;  10 
.\in.  It«|i.  4IH;  IlitfK'ins  r.  Wallevliet  Tpk. 
Co.,  4(1  N.  Y.  23;  7  Am.  Itep.  2'.W;  .Mclun 
ley  f.  ii.  (V).,  44  la.  341;  Coleman  c.  It. 
■:<>.,  IdCi  Mass.  KiO;  Klini^  v.  It.  Co.,  ■<7Cal. 
4i.l;  3'.tCal..5H7;  Hrown  !•.  It.  Co.,  fiG  Mo, 
r.HW;  Holmes  c.  Wakelleld.  12  Allen,  5W), 
•Ji)  Am.  Det^  171;  >.ew  .ler-y  Ste.im  Co, 
r.  Ilrockitt,  121  V.  S.  f,X,  ;  We-t.  etc.  It. 
Cu.  V.  Tiiruur,  72  Uu.  Vi'i ;  sa  Am.  Uep.  b42. 


CH.  XIX.]     RESPONSIBILITY  FOR  ACTS  OF  OTHERS.  ^  298 

proper  cause,  or  for  arresting  him  or  imprisoning  bim 
on  a  criminal  charge.* 

The  question,  however,  as  to  whetlicr  tlu'  j>rinciple 
stated  in  crp],  )  can  be  involved  to  ivlicvc  the  carrier 
from  responsibilitA'  in  an  action  by  a  i)ass('iig('r  is  one 
upon  which  there  is  a  difference  of  (►pinion.  Some  of 
the  cases  hold  that  it  may,  and  that  where  the  injnry 
done  by  the  servant  is  connuitted  not  with  a  view  of 
executing  the  nmster's  ordei's,  but  for  his  own  (the  ^K'r- 
vant's)  malicious  purpose,  the  carrier  is  not  respon- 
sible. Thus,  where  a  baggagemasler  and  a  passenger 
got  into  a  quarrtd  over  the  checking  of  (lie  passenger's 
trunk,  and  the  former  struck  him  with  a  hatchet  ;- 
wImm'c  a  female  ])assenger  on  a  street  car  went  to  the 
platform  and  asked  the  conductor  to  stop  as  she 
waut<'d  to  get  ofT,  to  which  he  replied  that  the  car  was 
st(»])i)ed  enough,  and  she  said  she  wctuld  not  get  off 
until  it  came  to  a  full  stoj),  wh('reu]»on  he  seized  her 
and  threw  her  fro      the  car,  breaking  her  leg,^  it  was 


1 1.af  itto  I'.  R.  Co.,  n  l,a.  Ann.  lOii  ;(;illin(i- 
liani  r.  I{.  Co.,  14  S.  K.  Kep.  242  (\V.  Vii.)  ; 
I.jnc'h  V.  U,  Ci)..".H)  N.  V.  77;  4;<  Am.  \U'\>. 
141 ;  (iiilvostoii  etc.  K.  Co.  c.  Doiichoi',  .lO 
Tex.  Ifi2. 

2  I.lltic  Miami  K.  Cd.  r.  Wftmorc,  I'.i 
Ohio  SI,  1111;  2  Am.  lJi'|).  n::i, 

.1  Isaacs  r.  K.  Co.,  47  .N.  Y.  122;  7  Am. 
Ifcp.  4i;i.  'I'lif  ri'|iorts  will  In-  si'arclu'il 
in  vain  fora  (Ici'i -ion,  in  liolli  it-i  ii'ason- 
iiiK  aii'l  idiiclusion  so  weak,  illo)rical  anil 
nnjii-t  a~  I'.ii'^.  One  riMMin  (fiver,  is  tliat 
"llic  ilcf'i  inlant  roiijil  not  laxfuliy  have 
ilono  it  ii.  c  tlirow  a  passiMijfor  Irom  a 
Movini;  car^  anil  tliiTcforc  no  authority 
oonld  1)1'  inijiliiMl  in  tliu  comlnctor  to  do 
t."  Til'  facility  it  has  l)ci'u  wrll  saiil  by 
ancinini'nt  writrr  (Thoiiip.  Carr.  I'ass. 
.lUG)  with  «hi<'h  th(!  (Tonlian  knot  of  ri'- 
spoudciit  sujM'rioristhnscji'ft  to  the  heart 
nmst  be  slartliiij;  even  to  the  snperlleial 
think'T.  If  we  lire  to  assume  that  a 
corporation  can  do  no  wrong,  then  it 
would  seeui    to    be   useless    to   discuss 


whether  the  wronps  of  its  ajrents  can  be 
iinpnleil  to  it.  Tlie  jndiit!  who  deliverecl 
the  opinion  ilia  not  apparently  notice 
thatth  -^liintilf  was  a  pa.~-enirer.  On 
alnio-i  -.inilarfacts(excjpt  that  the  pjaiu- 
tilf  \va-  not  a  pa^-en,'i  r)  in  a  later  case 
in  th(i  same  court  the  ina-ter  was  held 
liable  and  an  elfort  was  made  to  "distin- 
)rui-h"  the  two  ca-es.  t<he,i  r.  |{.  Co.,62 
N.  V.  INI).  It  is  clearly  ov  rriil'd  by  all 
the  subseipient  cases  in  New  York,  and 
is  entirely  irreeoneilalilo  with  several 
earlier  ones.  ,See  l!ounil-c.  )l.  Co.,(i4  \. 
Y.  IJ'.l;  Cohen  r.  '..  Co.,  C'J  \.  Y.  170; 
.Jackson  r.  K.  C  <  ,  47  N.  Y.  271 ;  Meyer  r. 
K.  Co.,  8  lio-'  .  .ill.');  Ilisririns  r. 'I'urnpike 
Co.,  4i;N.  Y.  2;i;  Sanilfonli'.  11.  Co.,  2!  N. 
Y.:i4i:  Weed  r.  H.  Co.,  17  X.  Y.  .Sr,2 ; 
Thorpor.  U.  ro.,;)().s<;  Dwinelle  c.  It.  Co.. 
po»t.  The  cases  of  I'arker  r.  U.  Co.,  6 
llun,  B7  and  I'riest  c.  It.  Co.,  «.->  \.  Y.  589, 
liki'wiseconllict  with  the  latest  decisions 
of  the  highest  court  of  that  state. 

441 


! 


ir^ 


§  298 


UESFO.VSIBILITY  FOK  ACTS  OF  OTHERS.    [PAUT  III. 


held  that   tlu'  caiTici'  was  uot  liable,  and  there  is  a 
dictum  to  the  same  effect  in  Missouri.' 

In  accord  with  llic  course  of  rea.soniiinf  in  these 
cases,  Mr.  Browne-  raises  the  question  whether  the  car- 
rier should  be  held  responsible  for  a  latent  defect  in  a 
servant,  which  nia^'  exist  in  men  just  as  well  as  in 
vehicles,  and  he  savs:  "A  latent  defect  in  the  nuikin;; 
of  a  nianufachM('<l  article  is  one  which  no  care  can 
avoid  and  winch  no  insjx'ction  could  have  discovered. 
It  seems  to  us  thaf  under  such  circumstances  an  acci- 
dent arisinji  from  such  a  defect  mij^ht  with  Justice  be 
considered  as  due  to  the  ad  of  (iod,  and  therefore  one 
of  those  casualties  against  wiiich  the  carrier  does  not 
insun\  The  fact  that  it  arises  from  the  inside,  as  from 
a  flaw  in  weldiuii"  of  a  wheel  tire  caused  by  an  air  bub- 
ble,'' instead  of  from  the  outside,  as  from  a  stoi'm  of 
wind,  a  flash  of  lij>htninn:,  or  the  attai  k  of  over.vhelm- 
injj  enemies,  s("ems  to  us  to  make  no  manner  of  differ- 
ence. It.  is  the  inevitability  and  llie  unavoidability 
which  is  the  point  to  he  considered.  If  no  human  care 
or  ability  could  in  the  present  condition  of  knowledge 
have  averted  the  catastrophe,  it  would  be  absurd  upon 
every  jiround  to  hold  tiie  person  responsible.  If,  then, 
a  man  may  select  a  wlivel  with  a  defect  in  it,  which 
may  cause  an  accident  for  which  he  will  not  be  held 
responsible,  so  it  seems  to  us  may  a  master  select  a  ser- 
vant with  a  latent  defect,  concerning:  which  he  can 
know  nothiufiand  can  procure  no  itiformation — as,  for 
instance,  a  hereditai'y  tendency  to  insanity,  a  liability 
of  epileptic  or  catalejitic  S4'i7,ures — throujiih  which,  if  an 
accident  occurrcsl,  he  could  not  with  justic^^  be  re- 
jjarded  as  in  any  way  responsible.     To  our  knowledj?e 


1  McKi'.m  1-.  K.  I'o..  42  Mo.  TH.    Unt  sci' 
Muhci'k  I'.  U.  Co.,  67  Mo.  IM;  2«  Pac.  Hep. 

977. 

44-i 


■i  Ciirr.  §fii7. 

»  Ueadbesd  v.  U.  Co.,  ante. 


CH.  XIX.]     RESPONSIBILITY  FOR  ACTS  OF  OTHERS.  §  298 


I  a 


the  doctrine  of  latent  defects  has  not  ae  yet  bwn  ac- 
knowkHlged  as  applicable  to  this  branch  of  the  law 
of  carriers."  No  case  seems  to  have  arisen  in  Enj;laud 
iu  which  this  (luefitiou  has  been  presented.  Tn  a  Kan- 
sas case  however,  a  ])a.ss<Mij;-er  pnrehased  a  ticket  at  a 
ticket  office  from  a  station  a}j;ent  who  at  the  time  was 
affected  with  small-pox,  and  the  passen<;er  took  the 
disease  from  him.  The  carrier  was  held  nut  liable, 
niainlv  on  the  ground  that  tlK'  carrier  had  no  knowl- 
edge of  the  agent'ti  condition.'  lUit  it  is  difficult  to 
see  where  the  misconduct  of  the  agent  in  exposing  a 
])assenger  to  a  dangerous  disease  differs  from  his  mis- 
conduct in  exposing  him  to  any  other  kind  of  jjei-soual 
injury. 

These  casv-^s  leave  out  of  view  the  relation  of  the 
carrier  and  passenger,  and  the  l?gal  duties  due  from 
the  former  to  the  latter.  The  'an ier  has  agreed  with 
the  passenger  to  carry  him  safely  and  securely,  and 
in  so  doing  to  use  the  highest  degree  of  care  in  the 
furnishing  and  (mj  lipmnit  of  his  vehicles  and  means 
of  transj)ortation,  and  in  their  management.  Nor  is 
this  all,  but  he  has  likewise  contracted  to  treat  the 
l)assenger  with  due  consi('era<^ion,  to  protect  him  from 
personal  rudeness  and  violence  at  the  hands  of  others, 
and  especially  at  the  handss  of  hii.nself,  repi-esented  as 
he  must  be  iu  the  case  of  a  carrier  corporation  by  his 
agents  and  servants.-     If  he  is  injured  oy  the  miscon- 


1  I^ng  f.  n.  Co.,  28  Tdc.  Rep.  977. 

2  "  Mistaki'soi'cnr  in  stii'li  litigations  hy 
OV(>rlr)okiui;  tlu-  fin't  that  it  is  the  carrier, 
whether  ci  rporation  or  natmal  person, 
that  assumes  tliese  obliKalions.  and  not 
tlie  driver,  .iiaster  or  ciiiHlnetor  of  the 
eonvejanee,  for  the  hreaeli  of  winch  a 
right  of  action  accrues  to  tlie  pas.;enp'r. 
*  •  •  Tlie  iimiMcnt  the  pa!<  'n^er  en- 
ters the  steamer  or  otlier  conveyai.co  he 
is  more  or  h'ss  under  thu  coutrol  of  tlie 


master  o-  eonilnefor,  and  snbV.'ct  to  theiv 
order''.  Fit  or  iiiilll,  huinii.ie  or  brn  >l, 
Rooil-tenipered  or  iiiorc-e,  the  passen- 
ger is  eoiiip.iratively  lelpU'ss,  and  may 
be  obliged  to  siilmiit  for  the  time  without 
any  nieaiisof  redress.  *  *  »  Tl'  ■  causa 
of  action  ari-"S  from  tlie  breac  of  the 
obli^Mtion.  and  if  so,  it  cannot  .aku  any 
diirerence  wliellier  the  breach  was  occa- 
sioned by  the  act  of  the  principal  or  of 
his  employees  "    Sir.  Jnstlce  (Clifford,  in 

443 


§298 


RESPONSIBILITY  FOU  ACTS  OF  OTHERS.    [PAllT  III. 


...  •* 


duct  of  the  servant,  the  contract  is  broken,  and  it  mat- 
ters not  whether  his  conduct  was  negligent,  willful  or 
malicious.  The  injury  to  the  passenger  is  not  an  act 
of  commission  by  a  servant  of  the  carrier,  but  an  act  of 
omission,  viz.,  to  fail  to  protect  the  passenger  while  in 
his  charge;  and  ii  is  nowhere  denied  that  where  a  per- 
son is  by  law  or  contract  bound  to  do  something,  he 
cannf)t  excuse  himself  for  a  failure  in  this  respect,  on 
the  ground  that  it  was  the  fault  of  another  employed 
by  him.*  Every  servant  of  the  carrier  is  bound  to  pro- 
tect the  passenger.  For  hira  to  get  out  of  the  scope  of 
his  employment,  he  must  dissolve  entirely  his  relation 
to  the  carrier,  an(  leave  his  emi)loy.  'Die  specitiod 
duty  of  the  particular  servant  in  carrying  out  all  other 
obligations  may  be  very  limited,  but  the  scope  of  his 
emi)loyment  is  as  broad  as  the  obligations  of  his  mas- 
ter.- 


IViulR'ton  JJ.  KinsU'y,3Cliff.  416.  "Where 
WHS  tlie  corporation,  and  by  whom  rep 
resenteil,  as  to  tliis  eoutraet  and  this  pas- 
senfTcr?  Not,  surely,  in  some  foreign 
boaril  room,  by  directors  makinff  regula- 
tions and  appointiutr  ajtencies  for  the 
eoriMirate  business.  They  eoulil  not  per- 
lorni  tliis  contraet.  Not,  surely,  in  some 
distant  olliee,  by  a  suiierintendent  or 
luanaL'er  issuing  thi'  orders  of  the  direc- 
tors to  his  siibonlinates.  h  "  eoidd  not  per- 
form this  contract.  ^)ho(I(/ this  contract 
and  this  passeiifrer,  the  corporation  was 
pre>eiit  on  this  train,  to  keep  it  and  to 
care  lor  her,  represi'Uted  by  the  olliccrs 
of  the  train,  who  posse -sed,  pro  hue  five, 
the  whole  power  and  authority,  and  were 
the  living  embodiment  of  the  ideal  entity 
which  made  the  contraet  and  was  bound 
to  keep  it."  Ryan,  C  .J.,  in  Croaker  v.  II. 
Co.,  ac.  Wis.  fiB".  And  sie  ISrand  r.  U. 
Co.,  8  liarb.  36b;  Lundreaux  v.  Bell,  5 
La.  434. 

1  The  carrier,  fo-  example,  is  bound  to 
furnish  a  secure  road-bed  so  far  as  the 
hiphesl  degree  of  care  can  make  it  se- 
cure. He  <;annot  plead  the  ni'glect  ot  au 
iudepundent  coutructor  engaged  to  con- 

444 


struct  the  road.  See  §  301  •  "  It  would  be 
cheap  and  superficial  morality  to  allow 
one  owiniiaduty  to  another  to  coiiiuiit 
the  pi'rformanee  of  his  duty  to  a  third, 
without  resiionsibility  for  the  malicious 
conduct  of  the  substitute  in  irerfoiiuaiice 
of  the  duty.  If  one  owe  bread  lo  another, 
and  ajipoint  an  airent  to  furni>l'  it,  and 
the  agent,  of  malice,  fiirni.-li  a  stone  in- 
stead, the  principal  is  ri'sponsiblc  for  the 
stone  anil  :1s  conse(|iieuces.  In  such 
cases  malice  is  negligence."  Hy.in,  C.  J., 
in  (!)roaker  v.  K.  (^^.,/)os^:  In  Weed  r. 
I'ana'na  K.  Co..  IT  N.  V.  SfiJ;  7'.'  Am.  Dec. 
4".'J;liie  conductor  willfully  detained  ii 
train  overnight  in  an  unhcallhy  locality, 
exposing  the  passengers  to  great  dan- 
gers and  hardships.  The  railroad  was 
held  liable  on  the  ground  that  the  c.ir- 
rier  was  bound  t  >  carry  the  passengers 
with  reasonable  dispatch,  and  it  was  no 
answer  to  an  action  for  the  breach  of 
this  duty  that  they  hail  cuniniitleil  its 
performance  to  an  agent  who  had  wan- 
tonly disregarded  his  duty. 

2  Lakln   r.    H.   Co.,   15   Pac.    liep.  641 
(Oreg.). 


^h 


on.  XIX.]     RESPONSIBILITY  FOR  ACTS  OF  OTHERS. 


298 


1.  The  obligation  of  the  carrier  to  carrj-  th'^  passen- 
ger safely  includes  the  duty  of  preserving  him  from 
bodily  harm.  He  is  responsible,  therefore,  if  the  pas- 
senger is  assaulted  and  beaten  while  in  his  charge,  by 
the  servants  employed  to  carry  out  the  agreenieut.'  In 
the  leading  case  in  New  York,  a  passenger  on  a  street 
car  expostulated  with  the  driver  for  his  treatment  of 
a  !,mall  boy  who  had  tried  to  steal  a  ride  on  the  car, 
whereupon  the  driver  attacked  him  ;ni(l  cruelly  beat 
him.  The  lower  court  had  dismissed  the  comi)lain! 
on  the  ground  that  the  driver  in  assaulting  the  passen- 
ger was  not  acting  in  the  course  of  his  einplovinent, 
but  nmde  the  attack  to  gratify  a  wicked  and  malicious 
purpose  of  his  own.  In  reversing  the  case  and  hold- 
ing the  carrier  liable,  the  court  said:-  "Had  ihe  i>erson 
assaulted  been  one  to  whom  the  defendant  owed  no 
duty,  the  dismissal  of  the  plaintilT's  comjilaint  would 
probably  have  been  correct;  but  the  rule  wliich  api)lies 
in  such  a  case,  has  no  a])plication  as  between  a  com- 
mon carrier  and  his  passenger.  In  such  a  case  a  dif- 
ferent rule  applies.  By  the  deien<lant's  contract  with 
the  plaintiiT,  it  had  undertaken  to  carry  him  safely,  and 
to  treat  him  respectfully;  and  while  a  comnu)ii  carrier 
does  not  undei-take  to  insure  against  injury  from  every 
|)ossil)le  danger,  he  does  undertake  to  j)i'otect  the  ])as- 
s(uiger  against  any  injury  arising  from  the  negligence 
or  willful  misconduct  of  its  servants  while  engaged  in 
performing  a  duty  which  a  carrier  owes  to  the  j)as- 
senger."  In  Massachusetts,  a  carrier  by  water  was 
held  liable  under  almost  exactly  the  same  circum- 
stances.'''    In  Kentucky  the  clerk  of  a  boat,  after  hav- 


1  IVnilicton  r.  Kinsley,  3  Cliff.  41G; 
Mooic  r.  U.  Co.,  i  (iray,  4fi3 ;  l'ick«'tts  v. 
II.  Co.,  10  South.  lU'p.  800  (W.  Va.).; 
Uonsion  eto.  K.  Co.  v.  Washington,  ;iO 
S.  W.  Ucp.  7iy  (Tex.). 


2  Stewart  v.  R.  Co., 90  N.  Y.  I>S8;  4S  Am. 
Uop.  185. 

»  Bryant  f.  Rich,  106  Mass.  180;  8  Am. 
Ui'p.  ,^11,  the  court  sayintt:  "In  this  case 
the  servants  who  committed  the  wrong 

445 


§  298 


RESPONSIBILITY  FOU  ACTS  OF  OTIIKRS.    [PART  III. 


<^2 

■M'J 


ing  collected  the  proper  fare  from  a  boy,  charged  him 
with  haviDg  hidden  under  the  boilers,  and  on  the  boy's 
denying,  knocked  him  down,  destroying  one  of  his  eyes. 
A  verdict  of  |4,000  against  the  carri*"  was  alTirmed  un 
appeal,  the  court  saying:  "As  the  comix'iisation  the 
carrier  icceives  from  the  passenger  is  not  only  in  con- 
sideration tliat  he  will  transport  him  from  one  point  to 
another,  but  of  the  further  fact  that  «luring  tlie  lime 
he  is  so  transporting  him,  reasonable  diligence  will  be 
used  to  protect  hira  froni  insult  and  injury,  it  seems 
to  us  that  it  results  necessarily  that  the  contract  must 
guarantee  immunity  from  violence  at  the  hands  of 
thos(»  whose  duty  it  is  to  alToi-d  this  s(li)ulated  ])r(»tec- 
tion."'.  In  Maine,  a  brakeman,  having  been  worsted  in 
a  dilliculty  with  a  jjassenger,  after  the  quarrel  had 
ended,  came  up  from  behind  an<l  inllicted  several  blows 
u])on  the  passenger's  head  with  an  iron  stove-poker. 
The  court  held  that  although  the  brakeman  was  ob- 
structed in  the  performance  of  his  duty  in  the  iirst  in- 
stance, yet  the  struggle  having  end<Ml,  the  comi)any 
was  to  b(»  hehl  res])onsible  for  the  waut(»n  act  of  its 
sHM'vant  in  renewing  the  titrife.-     In  Illinoits,  a  i)assen- 


boiiiK  the  stewiinl  iiiid  table  waiters, 
wiTi!  those  who  were  (MigaRfd  i'l 
lin.vidinK  meals,  waiting  on  the  tal)le< 
anil  ciillectinjf  (he  pay  for  nie;ils.  They 
were  Iri'aiinK  thi'  plainliir'-^  relative  with 
t-'ross  rudeness  in  eonm'ction  with  this 
liiisiiie-s,  and  thi'  plainlilf  interfered  only 
by  a  remark  that  was  imiper,  wherenpnn 
the  assault  was  <'oniinitled.  It  was  nut 
as  if  a  qiiari'el  had  occurred  on  shore  and 
diseonn  M^ted  with  the  duties  of  persons 
on  shiplioard.  It  violated  the  contra<'t  of 
the  defi'ndants.  as  to  how  the  plaintill 
should  be  treateil  by  their  servanl-,  who 
were  employed  on  boa.d  the  >hip  an<l 
durint"  the  passa);e.  For  a  violation  of 
such  a  Contract  cither  by  force  or  netrli- 
(fence,  the  pIuintitT  may  brinn  an  action 
of  tort,  or  an  action  of  contract." 
1  Sherley  <>.  Rillings,  8  Bash,  U'l. 

446 


2  Hanson  r.  K.  Co.,  f.'.'  Me.  H4  ;  !6  Am. 
Kep.  404,  the  eour'.  saying:  "It  is  the  duty 
of  tlu!  conductor,  and  other  employees 
upon  a  train  of  ears,  to  tri'at  the  jiasseu- 
Ki-rs  with  civility,  and  to  !ib>lMin  trom  all 
iinnectssary  violence  toward  them.  It  is 
also  the  <luty  of  passenpers  to  observi! 
the  rnlesaiid  reK'ilations  of  the  conipan; , 
and  to  eondnet  th<  inselves  reni'rally  so 
as  not  to  invite  uncivil  ti.atmeiit,  nor 
provoke  violence.  Uiit  it  is  not  true  that 
dixibeclienci'  to  the  rules  of  the  I'ouiiiany 
will  opi'rate  as  a  license  to  the  euiployees 
to  niallreat  a  passen>rer.  If  a  passcuirer 
persists  in  violating  the  reasonable  rules 
oT  the  coinpr.ny,  after  notice  ol  the  rn'es, 
and  a  retjiiest  to  him  not  to  act  contrary 
to  them,  the  carrier  will  have  a  riffht  to 
rescind  the  contract  for  his  e<»nviyi»nce, 
and  refuse  to  carry  hiw  further.    Uut  he 


en.  XIX.]     RESPONSIBILITY  FOR  ACTS  OF  OTJI  KRS. 


§  29  S 


ger,  having'  accusod  the  brakcnian  of  stealing  his 
watch,  the  bralceman  striit-lv  him  in  the  face  with 
a  hiutern.  The  conrt  hvld  tlie  railroail  liable  for  the 
assault,  saying:  "The  contract  which  existed  between 
appellant  as  a  common  carrier,  and  api»ellee  as  a  pas- 
senger, was  a  guaranty  on  behalf  of  the  carrier  that 
appellee  should  be  protected  against  personal  injury 
from  the  agents  or  servants  of  appellant  in  charge  of 
the  train."*  In  Indiana,  the  carrier  wa«  declared  lia- 
ble for  the  act  of  a  servant  in  maliciously  throwing 
water  on  a  passenger  while  he  was  standing  at  the 
door  of  tlK^  car;-  in  (Jeorgia,  for  the  act  of  a  brakeniiin 
in  calling  a  passenger  out  of  the  car  at  a  way  station 
and  beating  him;''  in  the  Federal  conrt  for  the  act  of 


will  have  no  riftlit  to  maltroiit  him  while 
coiitiiiiiiiiK  ti)  pcrronii  the  contract  for 
his  coiivi  yaiici'.  Nor  is  it  tnu'  that  an 
uni  i;-il  woril  hy  a  oa^-scn^cr  at  the  bcjrin- 
ninn  of  his  journey  will  justify  the  car- 
rier's servants  in  treatinit  liini  witli  inso- 
lence to  the  end  of  it.  Nor  is  it  true  that 
an  assanlt,  or  resistance  to  the  perform- 
anoe  of  a  duty,  will  justify  the  servant 
in  pursninji  and  piinishinfrthe  passenijer, 
after  the  assanlt  or  the  resistance  is  over. 
If  he  does,  he  makes  the  earner  as  well 
as  hinisi'lf  liable  for  the  injury." 

1  Chir  iii:<i  etc.  If.Co.  c.  Klexnian,  lO.SIll. 
4H5;4'2.\ni.  liep. '2'.',  the  court  also  sayin({: 
"If,  for  evaniple,  a  conductor  or  brake- 
man  in  the  cinjiloy  of  a  railroad  company 
should  willfully  or  u)alici!»u;ly  assault  a 
stranirer,  a  person  to  wlioni  the  railroad 
'■onipany  owed  no  oblifration  whatever, 
the  master  in  such  a  cuse  would  not  be 
liable  for  the  act  of  the  servant;  but 
when  ti.e  same  doctrine  is  invoked  .o 
control  a  case  where  an  assault  has  bee'i 
made  by  the  servant  ol  the  "ompauy  "pou 
a  passenper  on  one  of  its  trains,  a  differ- 
ent  unestion  is  presented  -one  which 
rests  entirely  npon  a  ditferent  principle." 

2  Tcrre  Haute  et.v  R,  Co.  v.  Jackson,  81 
Ind.  I'.t,  the  court  saying:  "It  is  imma. 
terial  whether  the  couduct'ir  or  brakeman 


carry  till'  plaintiff,  as  a  passenger,  u' on 
its  tram,  and  was  bound  to  do  it  .-alely. 
For  this  purpose,  the  appellant  was  rep- 
resented by  Its  agents  in  charge  of  the 
train,  and  if  they  did  anything  iuconsist 
ent  with  the  safe  carriage  ami  delivery  of 
the  plaintiff,  at  his  ilestination,niiharmed, 
'he  ajipellant,  upon  the  plainest  princi 
pies  of  law  as  well  as  good  policy,  is  lia 
blu  for  the  injury.  The  drenching  of  a 
passenger  with  water,  either  negligently 
or  willliilly,  is  a  clear  and  direct  breach 
of  the  duty  to  carry  safely,  and  it  is  im- 
material upon  tlic  (jiiestion  (if  the  com 
pany's  liability,  whether  it  reKullcd  from 
the  fault  of  the  brakeman  alone,  or  of  the 
condiM'tor,  or  bolli  of  tluiii.  They  were 
each  agents  of  the  company  for  th"'  nin- 
nini;  of  the  train,  and  the  coiiipaiiy  there 
fore  Is  responsible  for  the  acts  of  either,  or 
both,  in  so  far  as  such  a<'ts  affected  the 
passenger.  It  follows  that  if  the  conduc- 
tor was  faultless  in  raising  the  valve  and 
in  throiviug  the  water  into  the  caboose, 
which  could  hardly  be  when  he  knew 
there  was  a  passenger  there  liable  to  be 
i:ijuri'd,  and  the  brakeman  designedly 
pro'ured  the  ])laintiff  to  go  to  the  door  of 
the  caboose  in  order  that  the  water  might 
strike  him,  the  comiiany  is  clearly  liable 
tor  the  injury;  that  the  evidence  tends  to 


had  been  recjnired  or  authorized  to  wash        show  tlii  •  state  of  facts  is  not  disputed, 
out  the  cars  of  the  company  for  any  pur- 
pose.   The  appellant  had  undertaken  to 


3  Peeples  v.  U.  Co.,  t>u  lia.  281. 

447 


§298 


RESPONSIBILITY  FOU  ACTS  OF  OTHERS.    [PART  III. 


=  ,_j;|. 


* 


.111.- 


"^9 


"'^'s. 


a  conductor  in  tlircatcning  a  passenger  with  a  re- 
volver.' And  in  Wiwcon.sin  the  railroad  was  held  lia- 
ble where  a  ticket  agent  left  another  employee  in 
charge  of  the  ticket  ollice,  who,  being  intoxicated,  re- 
turned a  passenger  too  small  an  amount  of  change,  and 
being  remonstrated  with,  assaulted  him.- 

2.  It  includes  likewise,  the  duty  of  preserving  him 
from  rudeness  and  insult.''.  In  a  Maine  caese,  a  passen- 
ger, having  surrendered  his  ticket  to  a  brakeman,  was 
afterwards  ai)proached  by  him  and  accused  of  endeav- 
oring to  avoid  the  payment  of  his  fare,  in  the  most 
abusive  language,  which  was  supplemented  by  the 
most  atrocious  conduet.  The  plaintitf,  a  person  in  ill 
health,  reclined  in  his  seat,  wlndly  unable  to  respond 
to  the  charge,  or  make  any  ex])lanation;  the  servant, 
bringing  his  fist  in  close  proximity  to  the  plaintilT's 
face,  shaking  it  violently,  threatenetl  to  sjull  his  brains 
on  the  spot  if  he  opened  his  mouth.       This  exhibition 


1  Gnllena  v.  \\.  Co.,  IH  Fod.  Uop.  llfi, 
CaWhvi'll.  J.,  Piiyiii),':  "The  olllcf  of  ron- 
iliinorof  ;>  pa.^^eiicpr  train  i.-:  an  exceed- 
inply  inipnrt.int  ami  responsiliU!  one. 
There  are  few  po^ilioiis  whieh demand  of 
their  meumlients  more  nood  jml.L'ment 
and  >elf  jiosse>siiiii.  Not  only  tlie  j)eaee 
an'l  eomfort,  lull  the  live  s  as  well,  of  jias- 
senders  are  in  tlu'ir  kei'pinu'.  They  must 
not,  l>y  any  aet  of  their  own,  disturb  the 
one  or  endanger  the  other.  They  have 
to  deal  with  all  classes  of  peoide.  They 
daily  come  In  contael  with  the  unsempu- 
lons  and  dishonest,  who  are  seekinir  to  de- 
fraud the  railroad  company  of  what  is 
Justly  its  due,  and  are  oricn  j:ri)s.siy  in- 
sulti'd  Ity  the  i);norant  ami  the  viil;;ar  for 
a  lawful  ami  i)r()j)er  di-charne  of  their 
duties.  It  is  olivioiis  that  if  a  comliictor 
was  to  attempt  to  redress  every  jjcr^onal 
insult,  or  enter  a  boisterous  iiiiarrel  with 
every  vuljrar  and  rude  person  w  ho  might 
invite  it,  there  would  be  no  peace  or 
safety  for  his  passengers.  He  must  de- 
cline   all  contests.    He  can  take  action 


railroad  company,  or  the  peace  or  safety, 
of  the  passengers  umliT  his  charire,  or 
his  own  safety  demand  it.  .And  then  he 
can  only  act  in  the  mode  and  manner 
lleretoiore  indicated,  accompli>liim.'  w  hat 
he  has  a  right  to  do  in  the  given  case 
With  iis  little  force,  violence,  and  confu- 
sion as  is  pr:ieticable  and  reasonable  un- 
der the  circumstances." 

2  Kick  V.  U.  Co., 68  Wis.  46!1;  tV)  .\m.  Kep. 
87S. 

••>  Keene  v.  Lizardi,  5  La.  4.31;  2T^  Am. 
Dec.  11)7;  0  La.  Mh  :  JG  .\in.  Uec.  47>i;  Xioto 
r.  Clark,  1  riilL  14.-);  Halt.  etc.  K.  Co.  r. 
Ulocher,  •27.Md.  2"7;  Mctiinnis  r.  U.  Co., 
•Jl  Mo.  (.\pp.)  410;  Lalltti'  r.  U.  Co., 42  La. 
Ann.  liM!;  Williams  r.  Car  Co.,  4n  I.a.  Ann. 
as;  South.  Kas.  1{.  Co.  v.  Kice,  IG  I'ac.  Hep. 
S17  (Kas.);  I'almari  r.  U.  Co., ;»  X.  Y. 
(Supt.)  2:l;  Atlanta  etc.  K.  Co.  v.  Condor, 
75  (;a.  .Il ;  I.«uisville  etc.  I{.  Co.  i:  Ballard, 
H.-)  Ky.  ,••1(17 ;  7  Am.  .><t.  Ki'p.  Gnu,  a  case  of  a 
female  passenger  tow'.nls  whom  the  con- 
duct of  the  servants  was  "indecorous." 
Chamberlain  r.  ChandT,  3  Mason,  242; 


only  ;u  those  cases  where  the  rights  of  the       8  Fed.  Cas.  2575. 

448 


CH.  XIX.]     RESPONSIBILITY  FOR  ACTS  OF  OTHERS. 


298 


was  prolonged  for  the  spnce  of  about  a  quarter  of  an 
hour,  in  the  pre.sence  of  several  i)assen^('rs  of  both 
sexes.     The   ticket   Avas    subsequently    produced    and 
identified  by  the  conductor,  to  whom  the  brakenian  hiid 
delivered  it  only  a  few  moments  before.     At  the  trial, 
the  defendants  claimed  that  they  were  wholly  irre- 
sponsible for  their  servant's  conduct,  on  the  ground 
that  it  was  willful  and  malicious,  and  wholly  unau- 
thorized by  them.     lUit  said  Walton,  J.:  "The  fallacy 
of  this  argument,  when  applied  to  tlie  common  carrier 
of  passengers,  consists  in  not  discriminating  between 
the  obligation  which  he  (the  carrier)  is  under  to  his 
l)assenger,  and   the  duty  which   he  owes  a  stranger. 
It  may  be  true,  that  if  the  carrier's  servant  willfully 
and  malicioufil}'  assaults  a  stranger,  the  master  will 
not  be  liable;  but  the  law  is  otherwise  when  he  assaults 
one  of  his  master's  passengers.     The  carrier's  obliga- 
tion is  to  carry  his  pawenger  wafely  and  proi)erly,  and 
to  treat  him  respectfully;  and  if  he  intrusts  tlu»  i)ei'- 
formance  of  this  duty  to  his  servants,  the  law  holds  him 
resj)onsible  for  the  manner  in  which  they  execute  the 
trust.     The  law  .seemts  to  be  now  well  settled  that  the 
carrier  is  oblige<l  to  protect  his  pas^sciiger  from  violence 
and  insidt,  from  whatever  source  arising.     He  is  not 
regarded  as  an  insurer  of  his  passenger'ts  .safety  against 
<'very  possible  source  of  danger;  but  he  is  bound  to  use 
all  such  reasonable  precautions  as  human  judgment 
and  foresight  are  capable  of,  to  make  hie  passenger's 
journey  safe  and  comfortable.     ITe  must  not  only  pro- 
tect his  passenger  against  the  violence  and  insults  of 
strangers  and  co-passengers,  but  a  fortiori,  against  the 
violence  and  insults  of  his  own  servants.     If  this  duty 
to  the  passenger  is  not  performed,  if  this  ])rotection  is 
not  furnished,  but,  on  the  contrary,  the  passenger  is 
30  '  *49 


§298 


RESPONSIBILITY  FOR  ACT8  OF  OTHERS.    [PART  III. 


1-1*1 

:xJ 


t 


r-" 


assaulted  and  insulted,  through  the  negligence  or  will- 
ful misconduct  of  the  carrier's  servants,  the  carrier  is 
necessarily  responsible.  And  it  seems  to  us  it  wouh? 
be  cau«e  of  profound  regret  if  the  law  were  otherwise. 
The  carrier  selects  his  own  servants  and  can  discharge 
them  when  he  pleases,  and  it  is  but  reasonable  that  he 
should  be  resi)onisIble  for  the  manner  in  which  they 
execute  their  trust.'" 

In  Massachusetts  a  conductor  had  made  a  like  cliargo 
against  a  fenuile  passenger,  arousing  the  attention  of 
all  the  other  passengers,  and  after  calling  her  a  liar, 
snatched  her  parasol  from  her  hand  saying  that  he 
would  keej)  it  as  security  for  her  fare.  The  railroail 
company  asserted  on  the  trial  that  as  its  conductor 
was  never  authorized  to  seize  a  passenger's  property 
to  enforce  paynient  of  fare,  and  could  not  be,  it  was 
not  liable  for  his  act,  but  the  Supreme  Court  thought 
otherwise.-  In  Wisconsin,  a  conductor  kissed  a  feniah> 
passenger,  and  the  court  held  the  railroad  liable,  say- 
ing: "We  are  unwilling  to  waste  tlnu'  or  patience'  in 
discussing  the  conductoi*'s  violation  of  the  appellant's 
contract  with  the  respoiulent.  Every  woman  has  a 
right  to  assume  that  a  passenger  car  is  not  a  brothel 
and  that  when  she  travels  in  it  she  will  meet  nothing, 
see  nothing,  hear  nothing  to  wound  her  delicacy  or 
insult  her  womanhood.  It  is  enough  to  say  that  the 
appellant's  contract  of  careful  carriage  with  the  re- 
spondent was  not  kei)t,  was  tortiously  violated  by  the 
officer  appointed  by  th(»  ap])ellant  to  keep  it.  And  so 
the  appellant  seems  at  the  tinn^  to  have  regarded  it. 


1  Godilard  r.  R.  Co.,  57  Me.  202;  2  Am. 
Uep.  H'J.  Si;u  also  Mulei.uk  v.  U.  Co.,  57 
Mo.  18. 

2  Riimsclcn  v.  U.  Co.,  104  Mass.  117;  ti 
Am.  Hep.  200. 

3  Nvvurtlu'loss  thu  judgment  of  Ryau, 

450 


C.  J.,  contains  a  most  leanii'd  and  ex- 
liaiistivi!  diNCiission  ot  thu  prmciiik'S  of 
law  applicalilu  to  such  casrs,  aii<l  must  bu 
icffardtMl  as  a  leading  casi^  on  this  sub- 
ject. Croaker  v.  U.  Cv.,  3G  Wis.  G57;  17 
Am.  Uep.  601. 


I 


on.  XIX.]     RESPONSIBILITY  FOR  ACTS  OF  OTHERS. 


§209 


It  is  very  certain  that  it  bad  a  right  to  Uismisje  the  con- 
ductor, as  it  did,  ijromptiy  and  most  proixnly  reseludiug 
his  contract  of  employment  for  violaliou  of  bis  duty. 
For  tliat  iH'rsou  violated  bis  contract  with  the  appel- 
lant by  violating  ilie  appellant's  contract  with  tbe  re- 
spondent, lie  sinned  in  tbe  course  of  bis  employment 
against  tbe  ai)]»ellant  and  tbe  icvjiondent  alike;  in  one 
and  tbe  same  act  broke  bis  own  contract  with  tbi'  ap- 
pellant, and  the  appellant's  witb  tbe  respoudeul." 

§  290.    Rule  of  Absolute  Liability  and  Keasons 

Therefor. — Tbe  rule  on  tbe  subjet-t  may,  therefore,  be 
shortly  stated  thus:  A  carrier  of  passengers  under- 
takes absolutely  to  protect  them  against  tbe  miscon- 
duct of  bi.s  servants  engaged  in  "executing  tbe  contract 
of  carriage.*  And  as  said  by  tbe  Maine  court,  it  would) 
be  a  matter  of  profound  regret  if  tbe  law  were  other- 
wise. Tbe  carrier  selects  bis  own  servants,  and  should 
be  responsible  for  tbe  manner  in  which  they  execute 
their  trust.  It  is  certainly,  as  important  for  tbe  travel- 
ing public,  that  they  should  be  trustworthy  as  that  they 
should  be  competent.-  Again,  a  diffeivnt  rule  would 
be  absurd,  for  it  would  make  tbe  carrier  liable  if  a 
ear  porter  should  fail  to  kee])  guard  over  tbe  passen- 
ger's elTects,  and  allow  a  thief  to  steal  them,  while  it 
would  hold  him  not  liable  if  tbe  porter  should  turn 
pickpocket  and  rifle  the  pockets  of  tbe  passengers;* 


•  Now  Jersey  Stoain.  Co.  v.  Brockett, 
121  r.  S.  tW7;  Stewart  r.  U.  Co.,  iiO  N.  Y. 
688;  43  Am.  Rep.  ISo;  Kootter  r.  R.  Co.,  36 
N.  V.  (Siipp.)  611;  Dilliiiitham  r.  Au- 
thony,73  Tex.  47;  Conjrer  r.  R.  Co.,  4,5 
Minu.  207;  tiillinghaini-.  R.  Co.,  U  S.  K. 
Rep.  2i3  ( W.  Va.)  ;  Wiuneirar  r.  \i.  Co.,  4 
8.  W.  Rep.  2.17  (Ky.);  Wabash  U.  Co.  i-. 
Savape,  9  X.  E.  Rep.  86  (Ind.)  ;  MeCinuiss 
V.  R.  Co.,  21  Mo.  (App.)  300;  Lalitte  f.  R. 
Co.,  42  La.  Auu.  160;  Savannah  etc.  R.Co. 
r.  Bryan,  12  S.  K.  Rep.  30"  (Gu.),  and  the 
Other  eases  eited,  ante. 

«  Uoddanl  v.  R.  Co.,  stipra. 


3  Stewart  f.  R.  Co.,  supra.  The  arRU- 
nient  that  tlie  earrier  is  liable  for  a  ser- 
vant ne,i;li;;eiitly  failini;  to  protect  the 
passenger  ajraiust  danger  or  injury  from 
otliers  but  is  not  lial)le  for  tlie  agent's 
malicious  ait  is  likened  by  Chief  Justica 
Ryan  to  a  contentiiiu  that  if  a  niau  hire 
out  lusdogto guard  slieep  against  wolves, 
and  the  dog  sleeps  wliih;  a  wolf  makes 
away  with  a  sheep  the  owner  is  liable, 
but  if  the  dog  play  wolf  and  devour  the 
sheep  himself  tlie  owner  is  not  liable. 
Croaker  r.  U.  Co.,  supra. 

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§299 


RESPONSIBILITY  FOR  ACTS  OF  OTHERS.    [PAUT  III. 


ft  "ft 


:::i 


would  make  the  carrier  liable  if  a  stage  driver,  driv- 
ing unskillfully,  upset  the  coach  and  broke  the  pas- 
senger's leg;  but  allow  him  to  go  scot  free  if  the  driver, 
taking  advantage  of  his  position,  assaulted  or  robbed 
the  passenger.^ 

In  a  leading  case  in  the  Federal  Courts-  Mr.  Justice 
.  nifford  says:     "The  obligation  which  the  carrier  as- 

rres  extends  beyond  the  specified  requirements  in  re- 
.vpeci  to  the  vehicle,  car,  or  other  means  of  conveyance, 
£'L:d  .^lso  includes  an  implied  stipulation  for  good  treat- 
ment of  the  passenger  during  the  passage,  trip,  or  voy- 
age, and  especially'  against  ill-treatment  by  the  carrier 
or  his  employees,  antll  against  everj'  degree  of  violence 
on  their  part,  or  wanton  interference  with  his 
person.  •  »  *  Breaches  of  the  obligation  assumed 
by  the  carrier  for  proper  treatment  of  his  passengers, 
it  is  conceded,  would  give  a  right  of  action  to  the  pas- 
senger if  the  acts  constituting  the  breach  were  com- 
mitted by  the  carrier  himself;  but  the  argument  is  that 
the  carrier  is  not  responsilTle  for  any  willful  trespass 
committed  b}'  the  driver,  conductor,  or  master,  unless 
it  be  shown  either  that  he  authorized  the  act  or  ratified 
it  after  it  was  committed.  *  *  ♦  But  the  court  is 
of  the  opinion  that  the  principles  of  law  applicable  in 
litigations  growing  out  of  the  relations  of  principal 
and  agent  or  master  and  servant  are  not  the  principles 
which  fully  define  the  rights,  duties,  obligations,  and 


1  Stewart  v.  II.  Co.,  supra.  In  Wooii, 
Master  &  Servant  648,  it  is  said :  It  a  car- 
ri-^r  of  goods  for  hire  should  conunit  the 
carriage  of  the  goods  to  n  servant,  and 
the  servant  should  steal  them,  or  wan- 
tonly destroy  them,  or  throiigh  his  neg- 
ligence injure,  or  suffer  them  to  be  in- 
jured, there  is  no  question  but  that  the 
master  would  be  liable  therefor,  and  it 
would  be  a  singular  rule,  and  an  absurd 
one,  that  did  not  hold  the  carrier  of  pas- 

452 


sengers,  intrusted  not  only  with  their 
comfort,  but  the  safely  of  their  persons, 
and  their  lives,  during  the  journey,  to  as 
strict  perlormanco  of  this  duty  as  of  the 
other,  and  it  will  be  seen  by  an  examina- 
tion of  the  cases  that  they  are.  They  are 
'■lound  to  look  out  for  the  comfort  of 
their  passengers,  and,  as  far  as  possible, 
save  them  from  annoyance. 
•i  Pendleton  v.  Kinsley,  3  Cliff.  416. 


CH.  XIX.]     EESPONSIBILITT  FOR  ACTS  OF  OTHERS. 


300 


liabilities  of  the  parties  to  this  controversy.  They  are 
not  strangers  beai-ing  no  other  relations  to  each  other 
than  one  citizen,  merely  as  such,  bears  to  another;  but 
the  defendant  was  a  carrier  of  pasc-ieugers  by  water, 
and  the  plaintiff  was  a  passenger  on  board  the  steamer 
of  the  defendant,  which  was  engaged  in  carrying  i^as- 
sengers  for  hire  between  two  commercial  ports. 
*  *  *  Passcngerr  do  not  contract  merely  for  ship- 
room  and  transportation  from  one  place  to  another, 
but  they  also  contract  for  good  treatment,  and  against 
personal  rudeness  and  every  wanton  interference  with 
their  persons,  either  by  the  carrier  or  his  agents  em- 
ployed in  the  management  of  the  ship  or  other  convey- 
ance, and  for  the  fulfillment  of  those  obligations  the 
carrier  is  responsible  as  principa';  and  the  injured 
part}',  in  case  the  obligation  of  good  treatment  is 
broken,  whether  by  the  principal  or  his  employees, 
may  procee<l  against  the  carrier  as  the  party  bound  to 
make  compensation  for  the  breach  of  the  obligation." 

§  300.    Relation   of   Master   and    Servant  Must 

Exist.  — The  rule  stated  in  the  last  section  does  not  ap- 
ply where  the  carrier  does  not  stand  in  the  relation  of 
master  to  the  servant  by  whose  act  the  injury  was  oc- 
casioned.' As  to  the  test  as  to  whether  a  particular 
person  is  a  servant  of  the  other,  it  may  be  stated  thus: 
Had  he  a  right  to  control  his  conduct  and  direct  his 
acts  or  did  he  do  so?-  which  is  a  qu'estion  of  fact  for 
the  jury.^     Thus,  a  carrier  by  water  is  not  responsible 


1  Patt.  Ry.  Ace.  L.  101, 

2  Laws.  Uight.,  lU'iii.  &  Pr.  §  294;  Brack 
ettt).  I,u))ke,4  Allen  138;  81  Am.  IH-c.  694; 
Kimball  r.  Cnshmuii,  10:{  Mass.  194 ;  4  Am. 
Kep.  6-28;  Wood  r.  Cobb,  1.?  Allen  58; 
Spronl  V.  HemminRway,  14  Pick.  1;  Cor- 
bin  t).  Am.  Mills,  27  Conn.  274;  71  Am. 
Dt",.  6■^■,  Pawlet  v.  It.  Co.,  28  Vt.  297; 
Michael  v.  Stanton,  3  Uuu.  462;  Black- 


well  f.  Wiswall,  24  Barb.  355;  Blake  i'. 
Feris,  6  N.  Y.  48;  65  Am.  Dec.  304;  Little 
V.  Hucket,  IIG  I'.  S.  ,SGfi;  Lakin  v.  R.  Co., 
15  Oregon  220;  Conger  r.  U.  Co.,  45  Minn. 
207;  Fluk'"  o.  R.  Co.,  81  Ga.  401 ;  McGnire 
V.  Grant,  25  N.  J.  (L.)  357 ;  67  Am.  Dec.  49. 
3  Penn.  R.  Co.  v,  S  picker,  105  Pa.  St. 
142. 

453 


§300 


RESPONSIBILITY  FOR  ACTS  OF  OTIIEES.    [PART  III. 


t0V  Em* 

rf, 


••'*••* 

^ 

-u^ 


for  the  neglect  of  a  surgeon  whom  he  is  required  to  carry 
on  his  vessel,  but  does  not  control,'  nor  is  a  railroad 
responsible  for  the  act  of  a  government  postal  clerk, 
which  the  government  sends  with  its  mail  on  the 
train.^ 

The  carrier  would  not  be  responsible  for  the  wrong 
or  negligent  advice  given  to  a  passenger  by  another 
passenger,  to  get  off  a  car  while  it  was  in  motion,  or 
at  a  place  where  it  v.-as  dangerous  to  alight;''  or  for 
the  negligence  of  one  i)assenger  in  assisting  another  to 
alight.^  Where  the  passeugt'r  can  show  nothing  more 
than  that  he  was  assaulted  by  some  one,  but  he  knows 
not  by  Avhoni,  as  he  was  entering  the  car,  this  will  not 
make  a  case  against  the  carrier/' 


1  111  OT.iicn  r.  rmiard  S.  S.  Co.,  28  N. 
E,  lii'p.  'Jdti  (M:i>-  )  -W,,  a  carrier  by 
water  was  held  not  lialile  for  the  iieKli- 
peiico  of  a  siii-;Jeon  whiili  by  statute 
steainslups  ari'  requireil  to  provide.  Said 
the  Court:  "Ciider  this  statute  it  is  the 
duty  of  the)  ship  owners  to  provide  a 
competent  sin-Lreon,  wlioni  the  passen- 
gers may  einiiioy,  it  they  choose,  in  tlie 
husinc-  ^  of  healiiiR  their  wounds  and 
cnrinu'lhiir  diseasi'S.  The  law  does  not 
put  till'  1)11 -in  ss  (d'  treating  sick  passen- 
gers into  the  eiiarge  of  eoinmon  carriers, 
and  nial.e  thiiii  responsible  for  the 
proper  nianaircMnent  of  it.  The  work 
which  the  physician  or  surgeon  does  in 
such  cases  is  uixler  the  contiol  of  the 
passengers  themselves.  It  is  their  busi- 
ness, not  the  business  of  the  carrier. 
They  may  employ  thi'  ship's  surgeon,  or 
some  other  physician  or  surgeon  who 
happens  to  be  on  board,  or  they  may 
treat  themselves  it  they  are  sick,  or  may 
go  withoi;t  treatment  it  they  prefer,  and, 
it  they  employ  the  surgeon,  they  may 
determine  how  far  they  will  submit 
themselves  to  his  directions,  auil  what  of 
his  medicines  they  will  take  and  what 
reject,  and  whether  they  will  suhmil  to 
a  surgical  operation  or  take  the  risk  of 
going  without  it.  The  master  or  owners 
of  the  ship  cannot  interfere  in  the  treat- 

454 


ment  of  the  medical  olTlcer  when  he  at- 
tends a  passenger.  He  is  not  tluir  ser- 
vant, engaged  in  tlu'ir  business,  and 
"  suliject  to  their  control  as  to  his  mode  of 
treatment.  They  do  their  wholi!  duty  if 
they  employ  a  duly  qualilled  and  com- 
petent surgeon  and  medical  praeiitioner, 
and  supply  him  with  all  necessary  and 
proper  instruments,  medicines,  and  med- 
ical comforts,  and  have  him  in  readiness 
for  such  passengers  as  choose  to  emiiloy 
him.  This  is  the  whole  rei|uireriieiit  of 
the  statuti'  of  the  United  .'States  applica 
lib' to  such  ca-es;and  if,  by  the  nature 
of  their  undertaking  to  transport  pas- 
sengers by  sea.  they  are  under  a  liability 
at  the  common  law  to  make  provision 
for  their  passengers  in  this  res|)ect  that 
liability  is  no  greater." 

2  Mister  v.  U.  Co.,  Gt  Wis.  325;  50  Am. 
Hep.  141. 

s  Ohio  etc.  R.  Co.  v.  Stratton,  78  111.  89; 
Frost  V.  U.  Co.,  10  Allen  ,S87  ;  8"  Am.  Dec. 
(iiis;  Cinn.  etc.  R.  Co.  r.  Farrell,  31  lud. 
4(18;  Kiler  r.  R.  Co.,  .Mt  N.  Y.  .S.")!. 

4  .Morrison  r.  R.  Co.,.')fi  N.  Y.  ,W3;  IJnr- 
rows  r.  R.  ('o.,f)3  N.  Y.  ■I.'ifi. 

fi  .-^aehrowit/,  r.  U.  Co., :',!  Kas.  212.  Un- 
less he  also  shows  negligence  in  the  car- 
rier's servant  in  protecting  him  from 
such  assault,  as  to  which  see  pout  §  302. 


CH.  XIX.]     RESPONSIBILITY  FOR  ACTS  OF  OTHERS. 


301 


If  the  servants  of  the  carrier  permit  a  third  person 
to  perform  the  duties  vested  in  them,  the  carrier  will  be 
liable  for  his  act.^  And  if  a  pasPon<;er,  aided  and 
abetted  by  the  conductor,  uses  excessive  force  in  re- 
moving another  passenji;er  from  the  train,  the  carrier 
is  liable  for  the  resultinj^'  injuries.- 

§301.  Liability  for  Acts  of  Independent  Con- 
tractors. — Where  A  employs  B  to  do  work  for  him  ac- 
cordin*''  to  his,  B's  method.s,  and  not  subject  to  A's  con- 
trol or  orders,  B  is  called  an  'independent  contractor," 
and  not  a  servant  or  ap;ent,  and  A  is  not  responsible 
for  the  negligent  acts  of  B  or  his  servants  in  the  course 
of  the  work.-''  And  A,  having  selected  his  contractor, 
is  not  bound  to  see  that  he  is  doing  his  work  properly, 
but  has  a  right  to  rely  on  his  carrying  out  his  agree- 
ment with  prudience  and  care.'*  As  in  the  course  of 
construction  and  oiieration,  a  railroad  is  frequently 
obliged  to  engage  independent  contractors  to  perform 
work  of  this  character,  this  principle  has  to  be  api)lied 


1  I.arkiii  r.  R.  Co.,  15  Orotr.  (Ul.  lint 
SCO  .Iiwctti;.  K.  Co.,  6,5  N.  II.  Hi. 

2  Int.  etc.  tt.  Co.  V.  Miller, 28  S.  \V.  Hop. 
273  (Tex.). 

.'"Mayor  n.  McCary,  84  Alii.  401;  15os- 
wcll  r.  Liiird,  8  Cal.  4fi'.t;  (is  Am.  Dec.  34,5; 
Hi'tini'ttf.  Tnii-body,  f.uCal.  50'.»;  ,5r,  Am. 
Hep.  117;  Scariiiioii  r.  Cliivano,  25  III.  424; 
79  Am.  Dec.  3:i4;  KflloiTR  v.  I'aynt',  21  la. 
576;  Kansas  etc.  U.  Co.  v.  Fitzsiinuioiis,  18 
Kas.  34;  Uobiiison  i:  Webb,  11  Iliisb.  2fi4; 
Katon  !•.  R.  Co. ,5'.)  Me. 020;  8  Am.  Ui'p.4H(); 
Allies  r.  .Jui'ilaii,  71  Mc  540;  36  Am.  Ucp. 
31)2;  McCarlliy  i:  I'onlaml,  71  Mc.  318;  36 
Am.  Ut'p.  320;  llilliard  f.  Richardson,  3 
(iray,  34:i;(13  Am.  Dec.  741;  Detroit  ;'. 
Corey,  ■)  Mich.  li;5;  80  Am.  D"  78;  Joslin 
V.  (iraud  Kapids  Co.,  .50  Mich.  616;  45  Am. 
Re|i.  54 ;  Mooro  f.  Sanborno,  2  Mich.  .519; 
59  Am.  Oet'.iOIt;  New  Orleans  etc.  R.Co.r. 
Reese,  til  Miss.  681;  Clark  v.  II.  Co.,  .36 
Mo.  202;  Kink  v.  Fnruace  Co.,  82  Mo. 
276;  82  Am.   Rep.  376;   Wright   v.  Uol- 


brook,  ,52  X.  U.  120;  13  Am.  Rup.  22;  Car- 
ter r.  BiTlin  Mills,  ,58  N.  U.  52;  42  Am. 
Uep.  572;  CiilT  c.  U.  Co.,  ,35  N.  ,1.  (L.)  17; 
10  .\Mi.  Uep.  20.5;  Jlcfiuirc  i-.  (Jraut,  25  N. 
•J.  (I,.)  .3.5.",;  67  Am.  Dec.  5U;  Ewan  r.  Lip- 
piilcott,47  N..I.  (L.)  192;54  Am.  Uep.  148; 
Blake  v.  Ferris,  5  \.  Y.  48;  ,55  Ami.  Dec. 
304;  MeCalfeity  r.  U.  Co.,  01  K.  Y.  17'*; 
19  Am.  Uep.  2i!T;  Kingr.  U.  Co., 60  N.Y.  1«2; 
23  Am.  Uep.  211;  Ferguson  r.  Hubl)ell,97 
N.  Y.  407;  49  Am.  Uep.  544;  Devlin  v. 
Smilh,  89  X.  Y.  470;  42  Am.  Uep.  311; 
Clark  V.  Fry,  8  Ohio  St.  358;  72  Am.  Dec, 
590;  Frie  i:  Caiilkiiis,  85  l>a.  St.  247;  Har- 
rison c.  ColUiLS,  86  I'a.  St.  153;  27  Am. 
Rep.  697;  Lancaster  eti'.  Co.  v.  Uhoads, 
110  I'a.  St.  377;  2  Am.  St.  Uep.  608;  Smith  r. 
Simmons,  103  I'a.  St.  32;  49  Am.  Uep,  113; 
I'aulet  I'.  It.  Co.,  28  Vt.  297.  So  in  En- 
gland: Laugher  c.  Pointer,  5  IJ.  &  C.  847; 
Quarman  v.  Bennett,  0  M.  &  \V.  499. 
4  Daniels  i-.  R.  Co.,  6  App.  Cas.  740. 

40.-) 


■  '♦-•"'I 


§  301  RESPONSIBILITY  FOR  ACTS  OF  OTHERS.   [PART  III. 


B 


in  actions  against  tlie  carrier  for  the  negligence  of  suoli 
third  parties.  In  a  Texas  case,  the  railroad  company 
had  let  a  contract  to  a  firm  to  construct  a  portion  of 
its  road,  and  before  the  work  was  completed  and  turned 
over  to  it,  a  construction  train,  carrying  a  passenger 
without  the  knowledge  or  consent  of  the  railroad  (the 
management  of  the  train  being  in  the  contractor  and 
his  servants'  alone),  was  derailed  and  the  passenger  in- 
jured. It  was  held  that  the  railroad  was  not  liable, 
the  court  saying  that  "to  hold  <therwise  would  vir- 
tually forbid  parties  to  constr^  t  works  of  improve- 
ment, or  perform  many  other  acts,  except  by  their  own 
servants,  unless  at  great  peril  for  liability  for  ^'he  ac- 
tions of  others  over  whom  they  have  no  immediate  con- 
trol."! 

The  master  iriU  be  liable,  however: 
1.  Where  he  has  n'serred  to  hhntielf  the  sKperri^ion  and 
control  of  the  work — for  here  the  contractor  is  clearly 
nOv,  "independent.''-  Therefore,  in  another  Texas  case 
where  a  passenger  riding  on  a  construction  train  was 
killed,  but  it  appeared  that  the  conductor  and  engineer 
were  employed  and  paid  by  the  railroad  company  whicli 
alone  had  the  power  to  appoint  and  discharge  them, 
though  it  was  usual  for  it  to  discharge  them  on  the 
contractor's  complaint,  it  was  held  that  the  railroad 
was  liable.^     It  is  said  that  the  fact  that  the  master 


1  OnnninKham  r.  R.  Co.,  51  Tex.  50;<; 
32  Am.  Rep.  G.'i.t;  see  al.so  IJailoy  v. 
R.  Co.,  57  Vt.  252;  52  Am.  Rep.  129; 
West  V.  U.  Co.,  63  111.  545;  Kansas 
etc.  R.  Co.  V.  Fitzsimmoiis,  51  Tex. 
803;  Union  Pac.  R.  Co.  v.  Hanso,  1 
Wyra.  27;  .Miller  r.  R.  Co.,  ,S!)  N.  W.  Rep. 
188  (I«);  Callahan  r.  R.  Co.,  23  la.  5f>2; 
Cl.irk  V.  R.  Co.,  .^6  Mn.  202;  Meyer  r.  R. 
Co.,2Nel).  319;  Central  R.  Co.  u.  Grant, 
46  Ga.  416. 

2  Speed  V.  R.  Co.,  71  Mo.  .S03;  Bnrmois- 
terr.  R.  Co.,  47  N.  Y.  (.S.  C.)264;  Linne- 

456 


han  r.  Rollins,  137  Mass.  153;  50  Am.  Rrp. 
287;  Wilson  f.  White,  71  (ia.  50r,;  51  Am. 
Rep.  269;  Brnekett  r.  Liibke,  4  Allen  i:.^, 
81  Am.  Dec.  694;  Faren  v.  Sellers,  39  La. 
Ann.  1011 ;  4  Am.  St.  Rep.  2,16;  GrilHths  r. 
Wolfram,  22  Minn.  185;  Gilbert  v.  Rearh, 
IS  N.  Y.  608  ;  Cincinnati  f.  Stone,  5  Ohio 
St.  .38;  St.  Paul  v.  Seitz,  3  Sfinn.  297. 

3  Burton  v.  R.  Co.,  61  Tex.  526,  the 
Court  saying:  ,"If  for  his  own  protec- 
tion, the  owner  reserves,  over  that  which 
he  permits  to  be  nsed  liy  another,  tlie  es- 
sential powQi'S  u(  a  master,  it  is  but  just 


OH.  XIX.]     RESPONSIBILITY  FOR  ACTS  OF  OTHERS. 


§301 


reserves  simply  a  limited  control  over  the  contractor, 
will  not  render  him  liable  for  the  negligence  of  the 
contractor  or  his  servants;^  but  what  is  a  control  and 
what  only  a  "limited"  control  must,  we  submit,  be 
rather  a  close  and  difficult  question  to  decide. 

2.  ^yhcrc  the  contractor  ivas  employed  to  do  the  act 
which  causes  the  Uijnnj.  In  an  English  caee,-  a  rail- 
road, being  authorized  to  construct  a  draw  bridge  over 
a  navigable  river,  employed  a  contractor  to  build  it, 
but  the  bridge  was  so  negligently  constructed  that 
when  it  was  completed  it  could  not  be  opened,  and  the 
nlaintiff's  vessel  was  prevented  from  passing  through. 
It  was  held  that  the  railroad  was  liable.  Said  I'ol- 
lock,  C.  B.:  "Where  the  act  complained  of  is  purely 


that  ho  shc'Iil  be  held  to  sustain  that  re- 
lationship \v;nQ  the  lights  of  otliers,  af- 
fected by  XXiv  negligence  of  those  so  se- 
lected, paid  and  kept  iu  his  employment, 
are  brought  in  fiuestiou.  If  a  locomotive 
or  train  had  been  injured  or  destroyed 
through  the  negligenct;  of  those  engaged 
in  operating  them,  what  case  would  the 
railway  company  have  against  the  con- 
tractors under  either  of  the  states  of 
fact  which,  from  the  evidence  as  it  was 
developed,  may  be  infeiTed  to  have  ex- 
isted? The  reply  of  the  contractors  to  an 
action  for  damages  based  on  such  facts 
would  be:  '  Ix)comotives  and  trains 
were  operated  by  men  of  your  own  se- 
lection, paid  by  yon,  and  over  whom  you 
gavetons  no  power  to  discharge.  You  re- 
tained over  those  operating  them  the 
powers  and  rights  which  the  master  has 
over  his  servants,  and  yon  must  bear  the 
burdens  which  result  from  their  failure 
of  duty  to  you.'  Such  a  defense  would 
be  unanswerable.  If,  for  an  injury  re- 
sulting as  did  that  under  consideration, 
an  action  should  be  brought  by  the  in- 
jured person,  or  by  his  representatives 
in  case  of  his  death,  against  the  contract- 
ors, what  would  be  their  reply?  It  would 
certainly  be:  'We  were  not  the  mas- 
ters of  those  persons  who  operated  the 
trains;  they  were  selected  and  employed 


and  paid  by  the  railway  company,  and 
we  had  no  power  to  discharge  iheui.  We 
could  direct  them  what  to  transport,  to 
what  place,  and  when,  but  how  it  should 
be  done,  in  so  far  as  luuning  the  traiu 
was  con  ;erned,  we  had  no  power  to  con- 
trol; in  reference  to  that  matter,  the 
railway  company,  for  the  protection  of 
its  own  property,  operated  it  by  its  owu 
servants,  and  as  it  does  not  appear  that 
the  injury  resulted  from  any  negligence 
of  ourselves  or  our  servants,  we  are  not 
liable.'  Such  an  answer  would  be  hard 
to  meet." 

1  Thomp.  Neg.  913  §  41 ;  Patt.  Ry.  Ace.  L. 
12.5.  For  cases  illustrating  this  distinc- 
tion see  Olark  r.  R.  Co.,  3G  Mo.  202;  Cal- 
lahan V.  R.  Co.,  23  la.  562;  Nevins  v. 
I'eoria,  41111.  502;  89  Am.  Dec.  392;  Rob- 
inson V.  Webb,  11  Bush.  464;  Krie  v. 
Canlkins,  8fl  I'a.  St.  24";  Harrison  r.  Col- 
lins, 86  I'a.  St.  153;  Samuelson  v.  Wining 
Co.,  49  Mich.  464;  43  Am.  Rep.  456;  Hunt 
t>.  R.  Co.,  51  Pa.  St.  475 ;  Hughes  v.  R.  Co., 
.39  Ohio  St.  461 ;  Hexamcrv.  Webb,  101  N. 
Y.  377;liurmeisteri).  R.  Co.,47N.  Y'.  (s.c.) 
264 ;  contra,  Harper  v.  Milwaukee,  30  Wis. 
365;  Schwartz  r.  Gilmore,  45  111.  455;  92 
Am.  Dec.  237;  Camp  v.  Churchwardens,  7 
La.  Ann.  321 ;  Slater  v.  Meserau,  64  N.  Y. 
138. 

2  Hole  V.  U.  Co.,  6  H.  &  N.  488. 

457 


§301 


RESPONSiniLITY  FOR  ACTS  OF  OTHERS.    [PART  III. 


*«&, 
«^^ 

::;"' 


I'll 


3 


y-'^ 


collateral,  and  arises  incidentally  in  the  co  irse  of  the 
performance  of  the  work,  the  employer  is  not  liable, 
because  he  never  authorized  the  act — the  remedy  is 
against  the  person  who  did  it.  But  when  the  con- 
tractor is  employed  to  do  a  particular  act,  the  doinj; 
of  which  causes  mischief,  another  doctrine  applies.'" 
A  simple  illustration  of  this  distinction  will  sutHce.  A 
employs  B,  an  independent  contractor,  to  build  a  house. 
During  the  progress  of  the  work,  B's  workman  negli- 
gently drops  a  beam  on  the  head  of  C,  a  passer  by. 
When  the  house  is  completed  it  is  so  negligently  con- 
structed that  it  falls  <lown  and  injures  D.  Here  A 
is  liable  to  I),  although  not  to  C,  for  the  injury. 

3.  Where  the  vork  emit  met  ed  for  is  icroinifiil  or  dntujer- 
Oifs,  per  sc.  If  the  master  lets  out  a  work  to  be  done 
which  must  result  in  a  nuisance,  he  is  liable  for  the 
nuisance.-  So,  Avhere  the  doing  of  the  work  is  a  tres- 
pass on  the  rights  of  others.^  So,  where  the  work 
which  the  contractor  is  engaged  to  do  is  likely  to  do 
injury,  the  master  must  take  precautions  to  guard 
against  such  probable  mischief,  or  he  will  be  respon- 
sible.* Thus,  A  employs  B,  an  independent  contractor, 
to  build  a  house,  the  plans  requiring  an  excavation  in 
the  street.  A  traveler  falls  into  the  hole.  A  must 
respond  in  damages,  as  h  '  should  have  seen  to  it  that 
the  excavation  was  properly  guarded.^'  On  this  i)riu- 
ciple,  where  a  contractor  was  employed  by  a  carrier 
to  construct  an  embankment  at  the  side  of  a  railroad 


1  And  sec  Kower  r.  IVatc,  L.  U.  1  Q.  1!. 
321;  lirownt'.  Wernur,  40  XM.  15;  Car- 
men  v.  Steubcnvillc,  i  Ohio  St.  3'.». 

2  Cannon  v.  Steubonvilli',  4  Ohio  St.  399; 
Lowell  I'.  K.  Co.,  2A  I'ick.  24 ;  34  Am.  Dec. 
.S3;  City  of  Tillin  v.  McConnuck,  34  Ohio 
St.  63a;  32  Am.  Kep.  408;  Creed  i'.  Uart- 
man,  29  N.  Y.  591 ;  86  Am.  Uec.  341 ;  Kee- 
gau  i>.  R  Co.,  8  N.  Y.  175;  69  Am.  Uec.  476; 

458 


Cuff  r.  U.  Co.,  35  X.  J.  (,L.;  17;  10  Am. 
Kcii.  2(15. 

■1  Leber  v.  R.  Co.,  29  Minn.  2,"jfi. 

4  llower  V.  I'eate,  1  Q.  1!.  Div.  ."i?! ; 
IJrownr.  Werner,  40  Md.  15;  Virjtiniaetc. 
K.  Co.  1'.  Sanger,  15  Gratt.  230. 

fi  Robbins  r.  Chicago,  5  Wall.  657;  Chi- 
cago t'.  Robbins,  2  Black,  418. 


CII.  XIX.]     RESPONSIBILITY  FOR  ACTS  OF  OTHERS. 


§301 


m 


track,  and  a  stone  fell  on  the  track  and  derailed  the 
train,  injuring  a  passenger,  it  was  held  that  the  rail- 
road should  have  guarded  against  such  an  accident, 
and  must  pay  damages.' 

4.     Where    the   diily    is   imposed    hy   eontracf   or   law. 
Where  a  person  has  contracted  to  do  something,  he 
cannot  excuse  himself  by  showing  that  the  agreement 
has  been  violated  by  an  independent  contractor,  and 
not  by  himself.-     A  company  agwed  to  lay  water  pipes 
in  a  city,  agreeing  with  the  city  that  it  would  protect 
all  persons  against  damages  on  account  of  the  exca- 
vatious  to  be  made,  and  then  let  out  the  work  to  a 
contractor  who,  in  the  negligent  use  of  a  steam  drill, 
injured  a  traveler.     The  company  was  held  liable  to 
the  traveler.''.     And  the  rule  is  the  same  where  the  dutj- 
is  prescribed  by  law,  independent  of  contract.*     Thus, 
where  a   municipal   oixlinauce  requires  the  owner  of 
any  building  material   placed  in  a   street  to  protect 
it  at  night  with  lights,  he  is  liable  to  a  person  who  is 
injured  through  the  failure  to  do  so,  even  though  it 
arose  through  the  fault  of  his  contractor."     It  is  on 
this  ground  that  a  carrier  can  not  escape  liability  for 
an  injury  to  a  passenger  caused  by  defects  in  its  means 
of  transportation,  though  they  are  the  work  of  inde- 
pendent contractors.      A  well  known  English  case — 
Fraiieis  v.   CoeJ:reJl,^   contains  an   iuterasting  and   in- 
structive application  of  this  principle.    The  defendant 
acting  on  behalf  of  himself  and  a  number  of  others  in- 
terested in  certain  races  on  a  race  course,  contracted 


1  Vii'Kinia  etc.  R.  Co.  v.  Sanger,  mipra. 

2  Sulsbiicker  i;.  Dickie,  6  Daly,  469; 
Campbell  V.  Somerville,  114  Muss.  3.!4. 

3  Water  Co.  v.  Ware,  16  Wall.5f.G;  n  con- 
trary ruling  iu  lllako  v.  Ferris,  5  N.  Y.  48, 
is  criticised  in  Storrs  r.  Utica,  17  N.  Y.  106 
unci  in  Thonip.  Neg.  'JOB  §  28. 


4  Lowell  V.  U.  Co.,  23  Pick.  24;  ,84  Am. 
Dec.  33;  (irey  v.  I'ullen,  5  IJ.  &  S.  970. 

6  Wilson  V.  White,  71  Ga.  506;  61  Am. 
Uep.  2G9. 

6  L.  11.  5.  Q.  B.,  184,  501. 


459 


r^ 


§301 


KESPOXSIBILITY  FOR  ACTS  OF  OTHERS.    [PART  III. 


J* -J  "I 


with  a  firm  of  builders  to  construct  a  graucl  stand  for 
the  purpose  of  viewing  the  races.  To  this  stand  si)ec- 
tatoi^  were  admitted  on  paying  a  small  sum,  the  money 
being  appropriated  to  the  racing  fund.  The  plaintiff 
having  i)aid  his  admission,  was  seated  on  the  stand 
when  it  broke  down  and  injured  him.  The  stand  hav- 
ing been  negligently  constructed,  it  was  held  that  the 
defendant  was  liable,  although  he  did  not  know  of  the 
defect,  was  guilty  of  no  negligence  himself  and  had 
■employed  competent  jxa'sonsi  to  erect  it.  "The  de- 
fendant" said  Ilannen,  J.,  "acting  on  behalf  of  himself 
and  several  other  persons  interested  in  the  Cheltenham 
steeplechases,  entere<l  into  a  contract  with  Messrs. 
Eassie  by  which  they  engaged  to  erect  and  let  to  the 
defendant  and  the  other  persons  a  temporary  stand  for 
the  accommodation  of  jiersons  desiring  to  see  the  races. 
The  stand  having  been  erected,  the  defendant,  on 
behalf  of  himself  and'  his  colleagues,  received  money 
from  visitors  for  the  use  of  places  on  the  stand. 
Messrs.  Eassie  were  competent  and  proper  i)ersons  to 
be  employed  to  erect  the  stand,  but  it  was.  in  fact  neg- 
ligently erected  by  them;  and  in  consequence  of  its  be- 
ing so  negligently  erected  it  fell,  and  the  plaint ilf,  wlio 
had  i-.iid  for  admission,  and  was  upon  the  stand  look- 
ing at  the  races,  was  injured  b}'  the  fall.  Neither  the 
plaintiff  nor  the  defendant  knew  of  the  improper  con- 
struction of  the  stand.  We  tliink  it  clear  that  the  de- 
fendant, by  receiving  money  from  the  idaintiff  as  the 
price  of  his  admiss>ou  to  the  stand,  entered  into  some 
engagement  witii  him  with  reference  to  its  condition; 
but,  in  order  to  determine  whiether  the  defendant  is  lia- 
ble in  damages  for  the  injury  which  the  plaintiff  sus- 
tained, we  have  to  consider  what  the  extent  of  that  en- 
gagement was.     The  nearest  analoov  to  this  case  seems 


iy 


460 


en.  XIX.]     KE8PON8IBILITY  FOR  ACTS  OF  OTHERS. 


§301 


to  be  afford (h1  by  that  of  carriers  of  paseengers.  The 
carrier  is  paid  for  providing  the  means  of  transporting 
the  passenger  from  jjlace  to  jilace.  The  defendant  re- 
ceived payment  for  providing  the  means  of  supporting 
the  si3ectator  at  a  particular  place.  This  distinction 
does  not  appear  to  give  rise  to  any  difference  in  prin- 
ciple between  the  contract  to  be  implied  in  the  one  case 
and  the  other,  as  to  the  safety  of  the  means  provided  for 
carriage  or  supjwrt.  The  recent  decision  of  the  Ex- 
chequer Chamber  affirming  the  judgment  of  this  Court 
in  Riadhvdil  v.  Midland  RaUicay  Coinpinitj,^  has  estab- 
lished that  there  isi  not  in  such  a  case  any  implied  war- 
ranty that  the  carriage  provided  is  in  all  respects  fit 
for  its  purpose;  but  that  decision,  while  it  gives 
contirmntion  (if  any  were  needed)  to  the  proposition 
that  the  carrier  undertakes  that  he  has  used  due  care 
in  providing  safe  means  for  the  conveyance  of  the  pas- 
senger, expressly  leaves  undetermined  the  further  ques- 
tion whether  the  carrier  also  undertakes  that  due  care 
has  been  used  by  those  who  have  contracted  with  him 
to  provide  the  means  of  conveyance.  In  the  present 
case  it  is  not  found  that  the  defendant  wps  himself 
wanting  in  due  care,  and  no  power  to  draw  inferences 
of  fact  is  given  to  the  Court;  and  if  it  were,  we  should 
not  be  able  to  draw  the  inference  that  the  defendant 
was  personally  guilty  of  any  want  of  care.  He  em- 
ployed competent  and  proper  persons  who  had  ef- 
ficiently executed  similar  work  on  previous  occasions. 
Tlie  circumstance  that  the  defendant  did  not  himself 
suiwey  or  employ'  any  one  to  survey  the  stand  after  it 
was  erected,  does  not  in  itself  establish  the  charge  of 
negligence;  for  it  does  not  appear  that  the  defect  was 
such  as  could  have  been  discovered  on  inspection;  and 


1  Ante,  p  — , 


461 


1 


c*2 


„,. . . 

:';r 


§  301  KESPOXSIBILITY  FOK  ACTS  OF  OTHERS.    [PAUT  III, 

even  if  it  had  been,  it  cannot  be  laid  down  a«  necessar- 
ily a  want  of  care  not  to  inspect,  although  it  would  in 
some  circunistancos  be   evidence  from   which  a  jury 
might  properly  find  that  due  care  had  not  been  taken. 
"It  becomes  necessary,  th<'refore,  for  us  to  consider 
whether  the  contract  by  the  defendant  to  be  implied 
fi'om  the  relation  which  existed  between  him  and  (lie 
plaintiff  was  that  due  care  had  been  used,  not  only  by 
the  defendant  and  hi.s  servants,  but  by  the  jiersons 
whom  he  "employed  a«  independent  contractors  to  erect 
the  stand.     It  is  said  in  the  judgment  of  the  Court  of 
Exchequer  Chamber  in    Rcailhrad  v.  MUlJatu}   Rdiliniif 
Coiii/xnii/,  'warranties  implied  by  law  are  for  the  most 
part  founded  on  the  presumed  intention  of  tlu'  i)arti('s, 
and  ought  certainly  to  be  founded  on  reason,  and  witli 
a  just  regard  to  the  interests  of  the  partj^  who  is  su))- 
posed  to  give  the  warranty  as  well  as  of  the  party  to 
whom  it  is  supposed  to  be  given.'     Api)lying  this  rule 
to  the  present  case,  we  think  that  the  contract  by  the 
defendant  with   the  plaintiff  did   contain  an   implied 
warranty  that  due  care  had  been  used  in  the  con.struc- 
tion  of  the  stand  by  those  whom  the  defendant  had 
employed  to  do  the  work,  as  well  as  by  himself.     In  the 
ordinary    coursie    of   things   the    [)assenger   does   not 
know  whether  the  carrier  has  himself  nmnufactured  the 
means  of  carriage  or  contracted  with  some  one  else  for 
its  manufacture.     If  the  carrier  has  contractwl  with 
some  one  else  the  passenger  does  not  usually  know  who 
that  person  is,  and  in  no  case  has  he  any  share  in  the 
selection.    The  liability  of  the  manufacturer  must  de- 
pend on  the  termsi  of  the  contract  between  him  and  the 
carrier,  of  which  the  passenger  has  no  knowledge  and 
over  which  he  can  have  no  control;  while  the  carrier 
can  introduce  what  stipulations  and  take  what  securi- 
462 


en.  XIX.]     RESPONSIHILITY  FOR  ACTS  OF  OTIIKUS. 


§301 


ties  he  may  think  propor.  For  injury  re«^tilting  to  the 
carrier  himself  by  the  miuufutluivr's  want  of  care, 
the  carrier  ha«  a  remedy  aj,^ainst  the  manufacturer; 
but  tlie  pas«cu{>er  lias  no  remedy  aj;;aiust  the  manu- 
facturer for  damage  arisinj^-  from  a  nere  breach  of  con- 
tract with  the  carrier.  Unless,  then^fore,  the  presumed 
intention  of  the  parties  be  tln^t  the  passeny,er  should, 
in  the  event  of  his  bein«>-  Injured  by  thc'  breach  of  the 
manufacturer's  contract,  of  whicb  ho  luus  no  knowledj^'c, 
be  without  remedy,  the  only  way  in  which  elTect  can  be 
given  to  a  dilTerent  intention  i«  by  sujjpo.sinnj  that  the 
carrier  is  to  be  responsible  to  the  passenj;i  r,  and  to 
look  for  his  indemnity  to  the  person  whom  he  selected 
and  whose  breach  of  contract  has  caused  the  mischief. 
We  have  already  stated  that  we  con.slder  the  same 
reasoning  which  is  applicable  to  the  case  of  a  carrier 
of  ])assengers  is  ai)])licable  to  the  case  of  a  person  who, 
like  the  ])laintiff,  ])rovides  places  for  spectators  at  races 
or  otln^r  exhibitions.  But  not  only  do  we  think  that 
when  the  reasons  of  justice  and  convenience  on  the 
one  side  and  on  the  other  are  weighed,  the  balance  in- 
clines in  favour  of  the  plaintiff,  but  we  are  also  of 
opinion  that  the  weight  of  authority  is  on  the  plaintiff's 
side."  Kelly,  C  B.,  said  in  the  same  case,  "I  do  not 
hesitate  to  say  that  I  am  clearly  of  opinion,  as  a  general 
pro])osition  of  law,  that  when  one  man  engages  with 
another  to  supply  him  with  a  particular  article  or 
thing,  to  be  applied  to  a  certain  use  and  purpose,  in 
consideration  of  a  pecuniary  payment,  he  enters  into 
an  implied  contract  that  the  article  or  thing  shall  be 
reasonably  fit  for  the  purpose  for  which  it  is  to  be 
used  and  to  which  it  is  to  be  applied.  That  I  hold  to  be 
a  general  proposition  of  law  applicable  to  all  contracts 
of  this  nature  and  character.     It  is,  indeed,  subject  to 

463 


§  301  RESPONSIBILliY  FOR  ACTS  OF  OTHERS.    [PART  III. 


CO 

Iv...  w 

CO 


a  qualificatiou  or  exception,  as  determined  by  the  case 
of  Readhcad  v.   Midland  Railway   Company;  but   that 
qualification  extends  only  to  the  case  of  some  defect 
which  is  unseen  and  unknown  and  undiscoverable,  not 
onl3'  unknown  to  the  contracting  party,  but  undiscov- 
erable by  the  exiercise  of  any  reasonable  skill  and  dili- 
gence, or  by  any  ordinary  and  reasonable  means  of  in- 
quiry and  examination.     »     *     »     Whether  it  be  the 
case  of  a  carriage  or  of  a  bridg-e,  or  as  in  the  present 
case  of  a  stand  in  which  scats  are  contracted  for  to  wit- 
ness some  public  spectacle,  the  rule  of  law  and  the 
rule  of  reason  and  good  s^ense  appear  to  me  to  be  the 
same.     Take  the  ulore  ordinary  case  of  a  carriage.     If  a 
man  engaged  in  consideration  of,  say,  a  guinea,  to  sup- 
ply a  carriage  such  as  an  omnibus,  to  hold  six  persons, 
to  proceed  on  an  excursion  to  the  Crystal  Palace,  and  a 
guinea  is  paid,  and  the  carriage  is  sent,  is  it  possible  to 
conceive  that  he  does  not  contract,  not  only  that  the 
carriage  shall  contain  seats  for  six  persons,  but  that  it 
shall  be  reasonabl}'  fit  for  the  purpose?    *    *    *    First, 
there  is  the  principle,  which  I  hold  to  be  well  estab- 
lished by  all  the  authorities,  that  one  who  lets  for  Lire, 
or  engages  for  the  supply  of  any  article  or   thing, 
whether  it  be  a  carriage  to  be  ridden  in,  or  a  bridge 
to  be  passed  over,  or  a  stand  from  which  to  view  a 
steeplechasie,  or  a  ])lace'to  be  sat  in  by  anybody  who  is 
to  witness  a  spectacle,  for  a  pecuniary  consideration, 
does  warrant,  and  does  imi)lie<lly  contract,  that  the 
article  or  thing  is  reasonably  fit  for  the  purposte  to 
which  it  is  to  be  applied;  but  secondly,  he  does  not 
contract  against  any  unseen  and  unknown  defect  which 
cannot  be  discovered,  or  which  may  lye  said  to  be  un- 
discoverable by  any  ordinary  or  reasonable  means  of 
inquiry  and  examination.     *     *     *    T  am  therefore, 
464 


CII.  XIX.]     RESPONSIBILITY  FOR  ACTS  OF  OTHERS.  §  301 

of  opinion  tli«at  tliero  was  a  contract  botwvon  the  plain- 
tiff and  the  defendant — an  implietl  contract  indeetl,  but 
yet  a  binding  contract — and  that  tliat  contract  did,  in 
effect,  extend  to  this,  that  the  stand,  upon  which  the 
defendant  had  engaged  that  the  phiintifl"  should  enjoy 
a  seat  in  consideration  of  5  s.  during  the  sle^^plochase, 
wasi  reasonably  fit  for  the  purpose  for  which  it  was  to 
be  used,  and  for  which  the  seat  was  contracted  to  be 
supplied  to  tlie  plaintiff.  It  was  not  so  fit,  and  the 
defect  was  no  unseen  and  unknown  and  undiscoverable 
defect,  but  it  was  a  defect  occasioned  by  the  negligence 
and  want  of  care  and  skill  of  those  with  whom  the  de- 
fendant had  contracted  for  the  'cn'cctiou  of  the  stand." 
And  Montague  Smith,  J.,  added:  "I  think,  in  conform- 
ity with  the  decision  in  Riadhcad  v.  Miilliiiul  Rdlhcuji 
Coin  pa  II  I/,  that  there  wasi  no  warranty  or  insurance  that 
the  stand  was  absolutely  safe;  but,  I  think,  that  there 
was  an  im])lied  undertaking  on  thi'  part  of  the  defend- 
ant that  due  care  had  been  used  in  the  construction  of 
it.  It  seenis'  to  me  that,  in  casets  of  this  kind  which  re- 
late to  things  and  not  to  personal  services,  thi^  under- 
taking or  promise  to  use  due  care  may  be  more  cor- 
rectly stated  in  an  impersonal  than  a  personal  form, 
and  the  j»ro])er  mode  of  stating  it  is,  th'e  defendant 
promised  that  due  care  and  skill  had  been  used  in  the 
constructio!!  of  the  building;  or  the  obligation  may  bo 
put  in  the  other  form,  that  the  building  was  reasonably 
fit  for  the  use  for  which  it  was  let,  so  far  as  the  exercise 
of  reasonable  «are  and  skill  could  make  it  so.  It  seems 
to  me  that  those  are  obligations  which  are  to  be  im- 
plied from  a  contract  of  this  kind,  and  tliat  in  this 
case  they  have  been  broken;  for,  although  it  is  not 
found  that  there  was  any  personal  negligence  on  the 
part  of  the  defe^^dant,  yet  it  is  found  that  there  was 


31 


465 


•Vl' 


302 


KESPONSIBILITY  FOR  ACTS  OF  OTHERS.    [PART  III. 


si- 


negligence  on  the  part  of  those  who  constructed  the 
stand,  and  who  were  employed  by  the  defendant  to 
erect  it.  For  that  negligence  it  seems  to  me  that  the 
defendant  is  responsible."  The  carrier,  therefore,  can- 
not evade  this  duty  by  attempting  to  transfer  it  to 
another. 

§  302.    3Iust  Protect  Passengers  Against  Fellow 

Passengers  and  Strangers. — The  carrier  also  iiu. 
pliedly  contracts  to  protect  the  passenger  against 
insult  and  cor])oral  injury  at  the  hands  of  third  per- 
sons, whether  fellow  passengers  or  strangers.^  He  is 
not  an  insurer  in  this  case,-  but  it  is  a  question 
of  diligence  and  care  in  the  emergency  which  requires 
their  exercise.^ 

As  to  riots  on  the  train,  or  mobs  at  stopping  places, 
he  is  under  no  obligation  to  fux^nish  a  standing  police- 
force  sufficient  for  the  emergencies  of  occasions  of  ex- 
traordinary danger  to  passengers,  which  could  not 
have  been  foreseen.  But  it  is  his  duty  to  exhaust 
every  means  in  his  power  to  further  the  safety  of  pas- 
sengers; to  call  together  all  the  servants  of  the  com- 
pany, and  such  passengers  as  are  willing  to  lend  a 
helping  hand,  and  make  a  determined  effort  to  quell 
a  disturbance  which  threatens  the  safety  of  passengers 


I  I'ittsbnrp  etc.  \\.  Co.  r.  Hinds,  53  I'll. 
St.  512;  'Jl  Am.  Uec.  224;  I'utiiiim  r.  \\. 
Co.,  55  X.  Y.  108;  14  Am.  Kcp.  1H(J;  Flint 
ti.  Noi'wu'.h  I'tc.  Traius.  Co.,  34  Conn.  .')54; 
6  IMiitclit.  158;  I'ittsbui-g  etc.  K.  Co.  i\  I'il- 
low,  76  I'a.  St.  510;  18  Am.  Uep.  424  ;  New 
<Jrlcans  I'tc.  K.  Co.  v.  IJniko,  53  .Miss.  200; 
24  Am.  Ht'p.  fiSil;  Flanncry  v.  U.  Co.,  4 
Mackey,  111;  Uailway  Co.  r.  Valk'ly,  32 
Ohio  St.  3«5;  30  Am.  \\v\i.  GOl ;  Uolly  r. 
R.  Co.,61Ga.  215;  ,S4  Am.  llcp.97;  Hiittnn 
f.  U.  Co.,88N.  C.  530;  43  Am.  Hep.  749; 
Murphy  r.  U.  Co.,  23  Fed.  Hep.  r>37;  Hen- 
drieks  v.  H.f^o.,  12  Jones  &  S. ;  8  .sherley  v. 
JlillinRS,  8  Hush,  147 ;  8  Am.  Kep.  451 ;  (iod- 
(laid  V.  li.  Co., 67 Me.  202;  2  Am.  Rep.  39. 

46G 


2  "When  passenRovs  purchase  their 
tickets  and  take  their  seats,  they  know 
that  the  train  is  furnished  with  the  proper 
hanils  for  the  conduct  of  the  train,  hut 
not  with  a  police  force  siillit;ient  to  i|U(ll 
mobs  by  the  way.side.  No  such  element 
enters  into  the  implied  eontrict.  It  is 
one  of  the  in<'idt'ntnl  risks  which  all  who 
travel  mnsttakeupon  themselves."  I'itts. 
etc.  K.  Co.  r.  Hinds,  53  I'u.  St.  612;  91  Am. 
Uec.  221. 

3  And  whether  the  carrier  and  his 
servants  have  done  their  duty  in  this 
respect  is  a  unestion  for  the  jury.  Holly 
f.  R.  Co.,  61  tia.  216;  24  Am.  Rep.  97. 


CH.  XIX.]     RESPONSIBILITY  FOR  ACTS  OF  OTHERS. 


§302 


in  general.^     In  a  leading  case,  the  court  left  it  to  the 
jury  to  say — a  passenger  on  a  boat  having  been  injured 
during  a  scuille  among  a  lot  of  drunken  soldiers — 
whether  the  carrier's  servants  had  been  vigilant  in 
attempting  to  quell  the  disorder,  and  in  notifying  the 
other  passengers  of  the  condition  of  the  men  and  the 
danger  of  coming  in  contact  with  them."     In  one  ease 
the  carrier  was  held  to  be  guilty  of  negligence  in  stop- 
ping the  train  in  the  midst  of  a  howling  mob,  to  take 
on  persons  whom  the  mob  were  seeking  an  opportunity 
to  maltreat/"'     In  another,  the  master  of  a  ship  was 
held  responsible  for  losses  incurred  by  a  passenger  at 
the  hands  of  a  pair  of  gamblers  and  tricksters,  which 
it  was  in  his  power  to  have  prevented,  because  he  was 
aware  of  the  character  of  one  of  the  swindlers/ 

As  to  assaults  by  one  individual  on  another,  if  the 
action  of  the  person  making  the  assault  should  have 
shown  the  carrier's  servants  that  he  was  dangerous  to 
passengers,  they  should  restrain  or  remove  him,  but  if 
his  conduct  has  not  been  such  that  his  action  might 
reasonably  have  been  anticipated,  the  carrier  will  not 
be  liable.^ 

Where  the  passenger  is  injured  by  the  imjllgcncc  of 
a  third  person,  the  question  is  the  same,  viz. :  Did  the 
carrier  omit  to  use  the  proper  degree  of  care  to  prevent 


1  Pitts,  etc.  R.  Co.  V.  Hinds,  supra. 

2  Fllntr.  Norwich  etc.  Trans.  Co.,  tupra. 

3  Cliicago  etc.  U.  Co.  v.  rillt^ary,  123 
111.9;  5  Am  St.  Rep.  483. 

4  Smith  V.  \Vil8on,  31  How.  Pr.  272. 

«  I'litnam  v.  R.  Co.,  55  N.  Y.  108;  14  Am. 
Rep.  litO.  In  this  case  one  Foster,  an  in- 
toxicated passenger,  having  insulted  two 
women  with  A  in  a  street  car,  was  or- 
dered by  the  conductor  to  take  a  seat  and 
be  quiet,  which  he  did.  After  the  con- 
ductor returned  to  the  r<'ar  platform  of 
the  car,  F  resumed  hisabuse,  and  threat- 
ened A  but  in  a  tone  not  sullicieiitly  loud 
for  the  coudnctor  to  hear.  F  then  went 


upon  the  front  platform,  and  remained 
there  quii'tly  until  A  left  the  car  and  was 
assisting  his  companions  to  alight,  when 
F  came  round  from  the  front  platform 
and  assaulted  Iiim  with  a  car-hook,  in- 
flicting blows  upon  his  head  from  the 
effects  of  whii  h  he  died.  Tiio  murderer 
was  tried  and  hanged,  but  the  carrier  was 
held  not  liable  in  dauiagc-s.  So  in  I'attou 
I'.  K.  Co.,  77  Ala.  51)1;  54  Am.  Rep.  80, 
where  a  female  was  grossly  insulted  with- 
out the  knowledge  or  anticipation  of  the 
carrier's  servants.  King  v.  R.  Co.,  22  Fed. 
Rep.  413;  Louisville  etc.  U.  Co.  v.  Mc- 
Ewan,  81  S.  W.  Rep,  465  (Ky.). 

4G7 


.,..    •4f^pll 


§  302  RESPONSIBILITY  FOR  ACTS  OF  OTIIEES.   [PART  III, 


■;JJ 


the  injury?  In  a  New  York  case,  a  passenger  had 
placed  a  clothes  wringer  wrapped  in  brown  paper,  in 
the  rack  over  the  seats,  and  during  the  journey  it  fell 
on  the  head  of  a  fellow  passenger  injuring  him.  The 
carrier  was  held  not  liable,  because  "it  was  clear  that 
there  was  nothing  extraordinary  about  the  parcel  or 
its  position  in  the  rack,  and  nothing  to  attract  par- 
ticular attention  to  it;  and  so  the  failure  of  the  train 
hands  to  notice  it,  or  if  noticed,  to  order  its  removal, 
Avas  not  negligenice.'"  But  in  a  Texas  case,  where  the 
l)laintiff  testified  that  in  alighting  from  a  car  she  was 
forced  against  the  railing  of  tl'e  car,  and  pusher  from 
the  steps  and  injured  by  two  men  who  were  quarreling 
on  the  platform,  and  it  was  shown  to  be  defendant's 
usual  custom  to  have  some  one  standing  at  the  foot  of 
the  steps  to  assist  passengers  to  alight,  but  that  no  one 
was  there  when  plaintliff  alighted,  this  fact  Avas  held 
suliicient  to  charge  the  carrier.-  And  though  a  govern- 
ment postal  clerk  is  not  a  servant  of  the  railroad,  yet 
it  is  liable  for  the  act  of  the  clerk  in  throwing  a  l)air 
from  a  passing  train  which  strikes  a  passenger  stand- 
ing on  the  platform,  it  having  allowed  this  to  be  done 
before,  and  taken  no  precaution  to  protect  passengers 
from  the  results.^ 

If,  in  the  course  of  the  assault  upon  the  passenger 
he  should  be  robbed  of  portions  of  his  clothing  or  usual 
and  reasonable  articles  of  personal  ornament,  his 
watch  or  his  ])urse,  with  the  money  for  his  travelling 
and  other  personal  expenses,  the  carrier  would  be  lia- 
ble for  the  loss  thus  sustained.     lint  he  would  not  be 


1  Morris  f.  U.  Co.,  106  N.  Y.  GTS;  (iulf 
etc.  U.  Co.  V.  Shields,  28  S.  W.  Uop.  709 
(Ti'X.). 

2  S:.  isomi  otc.  U.  Co.  v.  Uussell,  28  S. 
W.  Ui'p.  1042  (Tex.). 

•t  Snow  V.  U.  Co.,  lid  Mass,  B.W;  49  Am. 
IJcp.  40 ;  Carpenter  v.  U.  Co.,  97  N.  Y.  494 , 

468 


49  Am.  Uep.  540;  anil  -ice  Hnffhos  r.  R. 
Co.,  .SO  S.  W.  Rep.  127  (Mo.).  In  u 
similar  case  in  Wisconsin,  the  i-ailinad 
was  properly  held  not  respon^ilile 
there  heinR  no  evidence  that  llie  h.-iR 
had  been  thrown  off  before.  Muster 
r.  U.  Co.,  61  Wis.  325;  50  Am.  Uep.  141. 


CH.  XIX.]     RESPONSIBILITY  FOK  ACTS  OF  OTHERS. 


§  302 


liable  for  any  large  sum  of  money  he  might  be  carry- 
ing on  his  person,  which  was  not  "baggage,"  and  of 
which  the  carrier  had  no  notice. 

In  a  New  York  case'  the  plaintilf  was  a  passenger  on 
a  railroad  train.     On  itsi  arrival  in  New  York  city,  the 
cans  were  disconnected  and  drawn  by  hordes,  and  the 
car  in  which  plaintilT  was  riding  was  left  standing 
alone,  with  no  emplo^-^e  of  the  defendant  in  charge  of 
it.     Three  men  entered  the  car,  and  forcibly  took  from 
his  person,  and   carried  away,  a  package  of  United 
States  bonds  of  the  value  of  $10,000.     But  it  was  Iw^d 
that  the  carrier  was  not  liable  for  the  money.    Said  the 
Court:  "The  plaintitt'  seeks  to  base  the  right  to  recover 
of  the  defendant  upon  the  ground  that  it  was  bound  to 
protect  the  passengers  in  its  cars  from  open  invasion, 
and  forcible  assault,  injury  and  robbery.     We  do  not 
need  to  deny  this  proposition  here.     A  carrier  of  pas- 
sengers is  bound  to  lexercise  the  utmost  vigilance  in 
maintaining  order  and  guarding  his  passengers  against 
violence.     But   if  h«e  noglects  to  do  so,  for  what  is 
he  liable?     His  liability  arises  upon  contract,  expressly 
made  or  implied  from  his  duty:  or  from  the  duty  of  his 
employment,  public   in   its   nature.     It  is  plain   that 
the  plaintiff  and  def-endaut  here  made  no  express  con- 
tract in  relation  to  these  securities.     Whatever  con- 
tract the  sale  and  purchase  of  a  passenger  ticket  ex- 
presses, it  does  not  make  a  contract  which  was  not  in 
the  mind  of  both  parties,  or  imputable  to  them  by  law. 
We  have  shown  that  the  law  does  not  impute  a  con- 
tract to  carry  for  a  passenger  other  goods  than  ordinary 
baggage;  and  as  the  defendant  had  no  knowledge  or 
notice  of  these  securitiies,  it  could  not  have  had  inten- 
tion to  engage  for  the  carriage  and  delivery  of  them. 


1  Weeks  v.  R.  Co. 
Rep.  104. 


72  N.  Y.  BO;  28  Am. 


469 


§  302 


RESPONSIBILITY  FOll  ACTS  OF  OTHERS.   [PART  III. 


3^ 


C^5 

•♦■"ft 

"••■I 


If  the  plaintiff  is  to  recover,  it  must  be  ex  delicto,  upon 
the  duty  of  defendant.  A  public  carrier  of  goods  is 
bound  to  vigilance,  and  niaj  set  up  as  an  excuse  for 
want  of  safe  carriage  and  t>ure  delivery  nothing  but  an 
exempting  act  of  the  shipper,  an  act  of  God,  or  of  the 
public  enemy.  Yet  if  the  shipper  conceal  from  the 
carrier,  or  fail  to  notify  him,  that  in  a  package  of  mean 
appearance  is  placed  an  article  of  great  value,  the 
ordinary  negligence  of  the  carrier  may  sustain  a  judg- 
ment for  Avhat  a  passenger  usually  carries,  but  will  not 
warrant  a  recovery  by  the  shipper  of  the  w(  th  of  his 
property  of  great  pvice.*  The  carrier  of  goods, 
in  the  absence  of  express  agreement,  is  liable  by 
reason  of  his  negligence,  for  damages  to  such 
amount  as  would  ordinarily  be  expected  to  result 
therefrom.  So,  though  a  carrier  of  passengers  is 
'bounld  to  guard  one  going  in  his  vehicle  from  vio- 
lence, the  damages  he  must  pay,  if  he  neglects  his 
duty,  are  such  as  would  ordinarily  result  therefrom,  as 
would  naturally  be  contemplated  by  the  parties  on 
making  their  contract,  or  assuming  their  relative  rights 
and  obligations.  Such  a  carrier  is  bound  to  take  the 
passenger,  and  to  carry  together  with  him  his  iuggaex, 
rea«onable  in  size  and  weight,  and'  in  kind  and  •  ;  *  ': 
the  articles  filling  it,  such  as  is  naturally  an'l  ^  ..jJly 
required  by  a  passenger,  and  reasonable  for  !i'  per- 
sonal use  while  on  the  way  or  at  his  place  of  destina- 
tion. Should  that  luggage  be  lost  by  the  carrier,  or 
misdelivered,  or  stolen  from  him,  though  it  may  contain 
large  sum®  of  money  or  articles  of  great  value,  or 
things  not  destined  for  personal  use,  the  carrier  is  not 
however  liable  for  them,  but  for  so  much  of  the  con- 
tents as  falls  W'ithin  the  classification  we  have  given 


i  Miles  t'.  Cattle,  6  Blng.  743. 

470 


CII.  XIX.]     KESPOXSIBILITY  FOR  ACTS  OF  OTHERS. 


§302 


above.  In  the  same  way  (though  we  do  not  pass 
authoritatively  upon  it),  should  a  passenger  be  assailed 
in  the  vehicle  of  th'e  carrier  in  such  circumstances  as 
that  it  was  a  breach  of  the  duty  of  the  latter,  that 
failed  to  protect  the  former  from  violence,  and  should 
he  be  robbed  of  portions  of  his  clothing,  or  usual  and 
reasonable  articles  of  personal  ornament,  his  watch, 
or  his  purse  with  the  money  for  his  travelling  and  other 
personal  expense's,  it  may  be  that  the  carrier  would 
be  liable  for  the  loss  which  its  passenger  had  sustained. 
But  if  the  passengei'  had  sw'u  fit  privately  to  place  and 
carry  upon  his  pc,  ni  securities  or  articles  of  great 
value  not  falling  within  the  above  category,  without 
th'e  knowledge  of,  or  notice  to  the  carrier,  and  in  the 
melee  they  should  be  lost  or  stolen,  the  latter  is  not 
liable  for  them.  He  has  entered  into  no  aspecial  con- 
tract to  carry  and  deliver  them.  He  owes  no  duty  in 
regard  to  them,  by  reason  of  his  public  calling  that 
is  no:  fulfilknl,  so  long  as  he  is  free  froui  gross  negli- 
gence and  fraud.  The  absence  of  notice  to  him  of  the, 
purpose  to  carry  them  has  prevented  him  from  exacting 
a  ivasonable  compensation  for  the  carriage;  and  what 
is  more,  from  making  provisions  for  safety  in  measure 
with  the  increase  of  the  hazard  incurred.  For  the 
carriage  of  himself,  his  watch,  his  purse,  and  the  like, 
the  passenger  does,  perhajis,  make  contract  with  the 
carrier;  or  so  does  set  in  operation  the  duty  of  the 
latter,  when  he  bu^is  his  ticket  or  takes  his  passage;  and 
does,  it  miiy  be,  legally  demand  of  liira  a  care  and  dili- 
gence up  to  the  needs  of  the  hazard,  and  render  him 
liable  for  such  damage  as  is  in  the  contemplation  of  the 
contract  or  the  scope  of  the  duty.  The  learned  counsel 
for  the  appellant  concedes  and  contends  that  the  prop- 
erty stolen  in  this  case  is  not  to  be  considered  as  bag- 

471 


§  302 


RESPONSIBILITY  FOR  ACTS  OF  OTHERS.    [PART  III. 


CO 

.III— 

C'"3 


gag«,  or  to  be  governed  by  the  rules  which  have  been 
laid  down  as  to  the  loss  of  that  and  liability  therefor. 
He  puts  the  right  to  recover  upon  the  duty  of  the  car- 
rier to  protect  thie  person  of  the  passenger  from  vio- 
lence. Is  it  logical  to  say  that  the  defendant  is  not 
liable  for  the  loss  of  these  securities  as  baggage,  or  as 
goods,  wares  and  merchandise;  that  is,  that  the  pres- 
ence of  them  in  the  car  in  the  character  of  a  valuable 
thing  did  not  create  a  duty  as  to  them,  but  that,  by  the 
fact  of  their  being  on  the  person  of  the  plaintiff  in  the 
car,  there  arose  from  the  duty  to  care  for  his  person  a 
duty  to  care  for  them?  The}-  Avere  nothing  else  on 
his  person  than  off  of  it.  They  did  not  become  a  part 
of  his  person,  and  thus  'inoke  a  duty  to  care  for  them 
as  a  part  thereof.  They  were  still  property,  extraor- 
dinarily in  the  vehicle  of  the  defendants.  Nor  do  we 
see  how  the  fact,  that  the  los«  occurred  through  vio- 
lence to  the  person  of  tlie  plaintiff  from  other  men, 
rather  than  from  accident,  makes  a  difference  in  the 
case.  The  defendants  are  bound  to  protect  the  plain- 
tiff from  the  violence  of  a  railway  accident,  as  well  as 
from  the  intentional  violence  of  ruffians  and  rogues. 
Would  it  be  claimed  that  if,  in  the  occurrence  of  a 
railway  accident,  these  securities  had  become  lost  from 
the  person  of  the  plaintiff  in  any  of  the  many  ways 
that  may  be  imagined,  ANith  no  other  human  interven- 
tion than  was  concerned  in  thie  accident  itself,  the 
defendant  would  have  been  liable  for  the  loss?  Such 
a  case  has  been  adjudicated  in  the  negative,  after  in- 
genious argument  and  well-considered  opinion.  To 
hold  otherwise,  would  be  to  extend  the  liability  of  the 
carrier  to  a  new  matter,  by  reason  of  the  human  vio- 
lence and  tlie  injury  therefrom ;  making  the  character 
alone  of  the  act  create  a  new  duty.  The  carrier  of  pas- 
472 


ClI.  XIX.]     RESPONSIBILITY  FOR  ACTS  OF  OTHERS.  §  302 

eengers  is  liable  for  harm  to  their  persons  from  i\e  vio- 
lence of  intruders,  when  he  has  been  negligent  in  his 
duty  to  protect  from  it.  IK*  is  liable  for  harm  to  their 
property,  where  he  has  been  negligent  in  his  care  cf  it, 
if  confided  to  his  caiv,  either  in  fact  or  in  law.  His 
negligence  is  thus  the  ground  of  liability  in  both  cases. 
But  the  proposition  contended  for  would  make  the 
neglig'tnce,  by  which  violence  comes  to  the  person  and 
property  of  the  passenger  from  other  human  beings,  far 
more  extensive  in  its  consequences  than  thie  negligence 
by  which  violence  comes  to  the  person  and  property,  or 
to  tli'e  property  alone,  from  inanimate  things.  We  see 
no  reason  for  this." 

473 


CHAPTER  XX. 


THE    ACTS   OF   THE    PASSE  S^OER. 


■rj 


!?"■■' 


803  Carrier  not  Liable  where  rassenger  Injures  Himself. 

304  Where  both  Carrier  and  Passenger  are  Negligent. 

305  Negligence  a  Question  of  Fact.— Province  of  Judge  and  .Jury. 

806  Contributory  Negligence. — Uidiiig  in  Dangerous  Place. 

807  Contributory  Negligence. — Hiding  in  Dangerous  Manner. 

308  Contributory  Negligence. — Boarding  or  Leaving  Vehicle. 

309  Contributory  Negligence. — Other  Cases. 
810  Contributory  Negligence. — Loss  of  Baggage. 

311  Contributory  Negligence. — Passenger  in  Sleeping  Car. 

812  Contributory  Negligence. — Acts  of  Passenger  Kesultiug  from 
Directions  of  Carrier's  Servants. 

313  Contributory  Negligence  of  Third  Persons. 

314  Contributory  Negligence  of  Persons  in  Cliarge  of  Children. 
815  Contributory  Negligence  of  Carrier  of  Passenger. 

§  303.  Carrier  not  Liable  Where  Passenger  In- 
jures Himself.  — Not  only  may  the  carrier's  negligence 
conduce  to  the  injury  of  a  passenger,  but  a  passenger's 
own  negligence  or  foolhardihood  may  bring  liiui  into 
such  jeopardy  that  he  may  be  seriously  injured  or  pos- 
sibly lose  his  life.  Where,  through  his  own  negligence, 
a  passenger  is  injured,  there  of  course  can  be  no  re- 
sponsibility upon  the  part  of  the  carrier.  It  is  not  a 
carrier's  duty  to  restrain  his  passengers  from  injuring 
themselves.^  Thus,  a  passenger,  who  had  escaped  un- 
injured from  a  car  which  caught  fire,  wajs  held  guilty  of 
negligence  so  as  to  bar  his  right  of  action  for  burn«  and 
other  injuries  received  in  rushing  back  into  the  car 
again  for  the  purpose  of  recovering  his  valise.^ 


1  Browne  Carr.  §  492 ;  Indianapolis  etc. 
R.  Co.  V.  Kntherford,  29Ind.  82;  92  Am. 
Dec.  337. 

474 


2  Hay  V.  R.  Co.,  37  U.  C.  Q.  B.  466. 


on.  XX.] 


THE  ACTS  OF  THE  PASSENGER. 


§304 


§  304.  Where  Both  Carrier  and  Passenger  are 
Negligent. — When  both  'he  carrier  iiud  the  passenger 
have  made  default  iu  that  diligence  and  care  which 
are  necessary  to  prevent  accident,  and  when,  in  conse- 
quence of  such  a  combination  of  heedlessness,  accident 
has  actually  happened,  and  injury  to  the  passenger  has 
actually  been  done,  the  passenger  cannot  recover  dam- 
ages, for  it  would  be  wrong  in  principle  to  allow  him 
to  comi)lain  to  a  court  of  law  of  an  injury  which  his 
own  negligence  has  contributed  to  cause.*  Not  only 
does  the  negligence  of  the  plaintiff  bar  his  recovery 
when  he  brings  the  action  himself,  but  also  where  the 
action  is  brought  by  those  who,  under  the  statutes,  are 
entitled  to  recover  damages  for  his  death.^  A  husband 
in  an  action  for  loss  of  his  wife's  services,  occasioned 
by  the  negligence  of  another,  will  be  charged  with  her 
contributor}'  negligence.^ 

Neither  the  belief  of  one  contributorily  negligent, 
that  he  will  not  be  injured  by  his  negligent  act,  nor  his 
ignorance  of  all  the  dangers  to  which  he  is  exposed, 
will  relieve  him  from  its  legal  conse<iuences.'* 

Although  there  has  been  negligence  upon  the  part 
of  a  passeng^^r,  ye't  if  the  negligence  upon  the  part  of 
the  carrier  is  of  such  a  nature  that  the  person  injured 
could   not,   by   the   exercise   of   ordinary   care,   have 


1  Galena  etc.  R.  Co.  r.  Fay,  16  111.  558; 
6,SAiii.  Dec.  323;  Chicago  etc.  U.  Co.  v. 
George,  19  111.  510;  71  Am.  Dec.  239; 
Warren  t).  R.  Co.,  S  Allen,  227;  85  Am. 
Dec.  700;  Penn.  R.  Co.  r.  Aspell,  23  Pa.  St. 
147;  62  Am.  Rep.  32.3.  In  Illinois,  Geor- 
gia and  Tennessee  the  doctrine  of  what 
iscalled  comparative  negligence  prevails, 
viz, :  that  if  the  passenger's  negligence  be 
slight  when  compared  with  that  of  the 
carrier,  the  latter  is  liable.  Wabash  etc. 
R.  Co.  V.  Wallace,  110  111.  114;  Atlantic 
etc.  R.  Co.  f  Ayres,  53  Ga.  12;  Lonisville 
etc.  R.  Co.  V.  Fleming,  14  Lea,  347;  see 
Fatt.  By.  Ace.  L.  69. 


2  3  r.awson  Rights,  Rem.  &  Vr.  §  1020;  2 
Thomp.  Neg.  1279;  Pym  f.  R.  Co.,  2  15.  & 
S.  759;  Tneliorr.  Chaplin,  2  C.  &  K.  730; 
Cleveland  etc.  R.  Co.  v.  Terry,  8  Ohio  St. 
570;  Karle  r.  R.  Co.,  .55  Mo.  47G;  (ierety  v. 
R.  Co.,  81.  Pa.  St.  274;  Hill  v.  R.  Co.,  9 
Heisk.  823. 

3  Chicago  etc.  B.  Co.  v.  Honey,  63  Fed. 
Rep.  39. 

4  Muldowney  r.  R.  Co.,  36  la.  462;  III. 
Cent.  K.  Co.  V.  Davidson,  64  Fed.  Rep. 
301 ;  Chicago  etc.  R.  Co.  f.  Landaur,58  N. 
W.  Rep.  434  (Neb.). 


475 


i 


ill 


§304 


TIIK  ACTS  OF  TIIK  I'ASSENGKK. 


PART  HI. 


avoided  tho  consoquonros,  the  carrier  will  still  be  lia- 
ble, for  in  such  case  the  paHsciiffcr's  iiejilijiciicc  has 
not  really  brouj^ht  about  the  injury.  It  is  only  where, 
says  Mr.  Browne,  the  i>laintiH"s  ne<;li;;('nce  is,  as  it 
were,  an  attribute  of  the  injury  and  not  an  incident, 
using  these  words  in  their  loj;ical  sense,  that  his  uey- 
ligence  can  be  regarded  as  excusing  that  of  the  defend- 
ant.^ So  although  the  passenger  may  have  negligently 
exposed  himself,  yi't  if  the  injni'y  would  have  h';ipi»ened 
in  any  event  the  carrier  Avill  be  liable.  Thus  a  ])aswen- 
geron  a  railroad  train,  who  is  injured  by  the  negligence 
of  the  railroad  company,  is  not  debaiTed  from  a  riglit  to 
a  recovery,  because  he  was  at  the  tinu'  he  received  the 
injury  negligently  riding  (m  the  i)latf(M'm  of  the  car,  op 
in  some  other  exi)osed  or  d'angerouK  p<Ksitiou,  if  such 
action  on  his  part  did  not  contribute  in  tiny  degree  to 
the  accident  or  to  his  injury.  If  the  accident  which 
occasioned  the  injury  would  have  h'api)en<Ml,  and  would 
have  been  att'ended  with  the  (same  results  to  the  pas- 
senger, if  he  had  been  in  his  proper  place  on  the  train, 
then  his  negligence  is  not  contributory  negiigcmce,  in  a 
senfie  that  would  preclude  a  recovers-,  because  it  in  no 
manner  or  degret^  contributed  to  the  injury,  and  i.s  there- 
fore wanting  in  the  element  of  proximate  cause  essen- 
tial to  constitute  contributory  negligence  that  will  bar 
a  recovery.-  Again,  if,  after  the  negligence  upon  the 
part  of  the  passenger,  the  carrier  could,  by  the  exercise 
of  care,  have  avoided  the  consequences  of  such  negli- 
gence, and  he  does  not  use  that  care,  and  an  accident 
and  injury  ensues,  the  negligence  of  the  former  will 


1  Carr  §  492. 

2  Kansas  etc.  R.  Co.  v.  White,  67  Fed. 
Rep. 481 ;  citing  Jacobus  v.  R.  Co.,  20  Minn. 
126 ;  Carrico  v.  R.  Co.,  19  S.  E.  Rep.  71  ( W. 
Va.) ;  Kentucky  etc.  R.  Co.  v.  Tliomas,  79 
Ky.  166;   Railway  Co.   v.   ChoUette,    C9 

476 


N.  W.  Rep.  921;  St.  Louis  etc.  R.  Co.  f. 
Rice,  59  Ark.  467, 11  S.  W.  Krp.  G99 ;  Woods 
V.  R.  Co.,33Pac.  Rep. 628  (Utali) ;  lionner 
V.  Glenn,  15  S.W.  Rep.  572  (Tex.) ;  Dowiro 
V.  R.  Co.,  148  Mass.  343 ;  19  N.  E.  Rep.  623; 
Hutch.  Carr.  S  651. 


CH.  XX.] 


THE  ACTS  OF  THE  rASSp:NGKI{. 


§  no6 


not,  iindor  such  circuiiistaiicos,  oxmso  the  nogligonce 
of  the  latter.' 

§  305.  Nejjfliffeiico  a  Qiicniion  of  Fact.— Province 
of  Judge  and  Jury. — Xej;llj;eiue  eitlici'  on  the  part 
of  the  carrier  or  the  i)asseiiger  is  a  question  of  faet  to 
be  (leteniiiiie<l  by  the  jin\v.  J'.ut  it  is  tiie  duty  of  the 
Ju(lj;'e  to  (leterniine  wlietiier  or  not  couiitet'iit  evidence 
has  been  ])roduccd  wliieli,  if  believed  by  tlie  jury,  will 
justify  men  of  reasonable  inin<ls  in  lindinj;'  a  verdict 
in  favoi'  of  the  parly  ni)on  whom  rests  the  burden  of 
proof  on  the  particular  issue.-  Many  cases  in  the  re- 
ports in  which  the  court  lays  it  down  that  a  particular 
act  was  contributory  neju'lif^'ence,  are  cases  wlieri?  a 
jury  has  so  found,  and  the  coui't  refuses  to  disturb  the 
verdict,  and  are  not  <le(darations  that  the  particular 
act  was  contributory  ne!i;lii;'ence  in  law.  For  the  judge 
to  withdrjiw  the  case  from  the  jury,  the  facts  of  the 
case  should  not  only  be  undisputed,  but  the  conclusions 
to  be  drawn  from  them  undisputable.  Whether  the 
facts  are  disputed  or  undisputed,  if  dilTerent  minds 
may  honestly  draw  different  conclusions  from  them, 
the  case  should  be  left  to  the  jury.  On  th(»  other  hand, 
if  in  the  i)articular  case  reasonable  men,  unalfected  by 
bias  or  ])reju(lice  would  be  agi'eed  concerning  the 
presence  or  absence  of  negligence,  the  judge  should 
not  submit  the  case  to  tho  jury,  but  should  decide  the 
matter  as  one  of  law.-'  Thi*s  is  beliiM'ed  to  be  a  cor- 
rect statement  of  the  law  governing  the  province  of 
court  and  jury,  respectively,  though  it  must  be  ad- 
mitted it  has  not  alw'ays  been  adhered  to  in  our  ju- 
dicial tribunals. 

§  306.    Contributory  Negligence  of  Passenger- 
Riding    in    Dangerous    Place.  — It  is  contributory 


1  RiowneCarr.  §  492;  Zemp  r.  R.  Co.,  9 
Rich.H4;  G4  A:t'.  Dec.  763;  Keith r.  rink- 
ham,  43  Mc.  601 ;  69  Am.  Dec.  80. 


2  I'ntt.  Ry.  Arc.  T,.  448. 

3  See  LawsonKiglits,  Rem.  A  Pr.  where 
a  large  number  of  authorities  are  cited. 

477 


It 


ippp 


§307 


THE  ACTS  OF  THE  PASSE>fGKiC.  [i'AliT  III. 


,rC 

o 

x> 

7< 

c: 

-•T" 

.ti" 

-3 

<^ 

rTl 

^■ 

•;r.:i 

C'-J 

! 

-3 

( 

«*s. 

■ 

r" 

ir:.-» 

■'   ^ 

:!!'v< 

M':.-. 

r-" 

■.».< 

CJ^-J 

;:x: 

"I 

'- 

in 

1  '        »: 

negligence  in  one  to  ritle  in  a  veliicle  not  in- 
tended for  passengers,  a.s  on  a  locomotive,'  or 
on  the  top  of  a  cattle  car,-  or  in  a  baggage 
car.^  It  is  not  negligence  per  sc  to  ride  on  the 
platform  of  a  passenger  car,*  especially  when  there  in 
no  room  inside.°  And  in  the  case  of  horse  cars,  it  is 
not  contributory  negligence  to  ride  on  the  platform, 
even  though  there  be  room  inside."  But  other  circum- 
stances united  with  this  may  render  the  passenger  neg- 
ligent. Thus,  where  a  passenger  on  a  train,  unable  to 
find  a  seat,  although  there  Avas  standing-room  inside, 
stood  on  the  platform  of  a  car,  near  the  edge,  and  was 
thrown  off  by  an  ordinary  jolt,  and  injured,  it  was  held 
that  he  had  no  cause  of  actiou.^  The  s«me  conclu- 
sion was  reached  where  a  passenger  in  a  similar  place, 
attempting  to  regain  money  blown  from  his  hand  in 
paying  his  fare,  lost  his  foothold,  and  was  thrown  off 
and  killed.^ 

§  307.  Riding:  in  Dangerous  Manner.  — The  pas- 
senger by  rail  or  in  a  horse  car  is  not  bound  to  keep 
his  seat  during  the  whole  trip,"  and  hence,  it  i.s  not 


1  Robertson  v.  R.  Co. ,22  Barb.  91 ;  Dor- 
gelt  V  R.  Co.,  .S4  Iowa,  284  ;  Railroad  f'o. 
V.  Jones,  95  U.  S.  489;  Krcsanowski  v.  R. 
Co.,  6  McC'reary,  628.  See  Waterbnry  v. 
E.  Co., 21  Blatohf.  314;  Lawrcnccbnrg  R. 
Co.  t'.  Slontgomery,  7  Ind.  474. 

J  Little  Rock  etc.  R.  Co.  r.  Miles,  40 
Ark.  298;  48  Am.  Rep.  10. 

s  Houston  etc.  R.  Co.  v.  Clemens,  55 
Tex.  88;  40  Am.  Rep.  799. 

4  Macon  etc.  R.  Co.  r.  Johnson,  38  Ga. 
409;  Weil  v.  R.  Co., 98  N.  Y.650;  Gerstle 
V.  It.  Co., 23  Mo.  App.  3G1 ;  Zemp  v.  R.  Co., 
9  Rich.  84;  64  Am.  Dec.  763;  Lafayette 
etc.  R.  Co.  i>.  Sims,  27  Ind.  69;  Clark  v. 
R.  Co.,  32  Barb.  657;  36  N.  Y.  135;  93  Am. 
Dec.  495. 

6  Willis  t).  R.  Co.,32  Rarb.  399;  34  N. 
Y.670;  Clark  v.  R.  Co.,  36  N.  Y.  135;  93 
Am.  Dec.  495;  Marion  St.  R.  Co.  i'.  Shaf- 
fer, 36  N.  E.  Bep.  861  (Ind.). 

478 


«  Meesel  r.  R.  Co.,  8  Allen,  234;  An- 
gnsta  etc.  R.  Co.  r.  Reiiz,  55  (in.  12(i; 
Spooner  r.  R.  Co.,  54  N.  Y.  230;  13  Am. 
Rep.  570;  Geimantown  R.  Co.  r.  Wall- 
ing, 97  Pa.  St.  5.".;  39  Am.  Rep.  796;  Nolan 
r.  R.  Co.,97  N.  V.  63;  41  An-  Rep.  345; 
Magnirc  r.  R.  Co.,  115  Mass.  i.19;  ISiirns 
V.  R.  Co.,  .50  Mo.  1,S9.  But  see  Baltimore 
etc.  R.  Co.  !•.  Wilkinson,  .SO  Md.  224; 
Ward  r.  R.  Co.,11  Abb.  I'r.,  N.  S.  411; 
Andrews  r.  R.  Co.,  2  Miickey,  13" ;  27  Am. 
Rep.  260;  Thiiteenlh  Street  R.  Co.  r. 
Bouiireau,92  I'a.St.475;  37  Am.  Rep.  '^'.V; 
Iladencamp  r.  R.  Co.,  1  Sweeny,  490. 

7  Camden  etc.  H.  Co.  r.  lloosey,  99 
Pa.  St.  492;  44  Am.  Rep.  120. 

8  Quinn  f.  K.  Co.,  SI  111.495. 

1"  Truex  r.  R.  Co..  4  Lans.  108;  Colwcll 
V.  R.  Co.,  .57  Hun.  4.5J;  Nichols  r.  H.  Co., 
38  N.  v.  131;  Meesel  r.  K.  Co.,  8  Allen, 
234 ;  Camden  etc,  Ferry  Co.  v.  Monoghan, 


'f 


OH.  XX.] 


THE  ACTS  OF  THE  PASSENGEK. 


§307 


or 


negligence  on  his  part  in  standing  up  in  the  moving  car 
to  view  the  ecenery;*  or  in  leaving  his  seat  and  stand- 
ing in  the  aisle  as  the  car  reaches  the  station,-  or  in 
standing  in  the  aisle,  and  making  preparations  to  leave 
by  brushing  and  plaiting  a  child's  hair;^  or,  finding  no 
seats  vacant,  continuing  to  stand,  looking  about  for  a 
seat;^  or  going  to  the  wash  room  of  the  car  while  it  Ls 
moving;'"'  or  standing  near  the  bow  of  a  ferry  boat 
when  it  is  landing." 

To  permit  one's  arm  or  any  portion  of  the  body  to  be 
outside  the  window  of  a  moving  car  may  or  may  not 
be  negligence,  and  whether  it  is,  in  a  particular  case, 
should  be  left  to  the  jurjV  except  where  carelessness 
would  be  dearlj^  apparent  from  the  circumstances,  as 
if  a  passenger  should  ride  with  his  body  half  out  of 


10  W.  N.  C.  (Pa.)  47;  The  Manhasset,  19 
Fe(i.  IJcp.  430;  Wood  i'.  li.  Co.,  49  Mich. 
870.  It  may  not  in  tlie  C!i.sc  of  women  at 
least  be  negligent  not  lo  hold  on  to  the 
straps  provided  in  streetcars.  See  Cent. 
Pass.  Co.  V.  Swain,  l.S  \V.  N.  Cas.  41 ;  West 
Phila.  Pass.  Co.  r.  Whipple,  5  irf.  08.  But 
see  Harris  v.  H.  Co.,  89  Mo.  223;  68  Am. 
Rep.  ni;  De  Sonny  r.  R.  Co.,  15  N.  Y. 
(8npp..i  108. 

1  Gei'.  V.  \l.  Co.,  L.  R.  8  Q.  B.  IGl, 

2  Burden  r.  U.  Co.,  121  Mass.  42G;  Wyide 
V.  R.  Co.,  53  N.  Y.  inr,;  Baltimore  etc.  R. 
Co.  f.  Leonhardt,  C6  Md.  70;  Worthen  «•. 
R.  Co.,  125  Mass.  99. 

3  Railroad  Co.  v.  Pollard,  22  Wall.  341. 

4  Pollard  r.  R.  Co.,  7  Bosw.  437;  La- 
;jourtc  r.  R.  Co.,  114  Mass.  18. 

«  Sttirdivant  v.  R.  Co.,  27  S.  W.  Rep. 
170  (Tex.). 

«  (ianmon  r.  Union  Ferry  Co.,  29  Ilnn. 
631 ;  Peverly  i'.  City  of  Boston,  136  Mass. 
366;  49  Am.  Rep.  37. 

1  Winters  v.  R.  Co.,  39  Mo.  408;  Barton 
V.  R.  Co.,  52  Mo.  253;  14  Am.  Rep.  41S; 
Miller  v.  R.  Co.,  5  Mo.  App.  471 ;  Seigel  v. 
Kisen,  41  Cal.  109;  Chicago  etc.  R.  Co.  v. 
Pondrom,51  I11.,S33;2  Am.  Rep. 306;  New 
Jersey  R.  Co.  r.  Kennard,  21  Pa.  St.  203; 
Farlow  v.  Kelly,  108  U.  S.  288;  Spencer 
V.  It.  Co.,  17  Wis.  437;  84  Am.  Dec.  768, 


the  Court  saying:  "  It  is  probably  the 
habit  of  every  person,  while  riding  in  the 
cars,  to  rest  the  arm  upon  the  base  of  the 
window.  If  the  window  is  op^u,  it  is  likely 
to  extend  sliglitly  outside.  This,  we 
suppose,  is  a  common  habit.  There  is 
alway.s  more  or  lesa  space  between  the 
outside  of  the  car  and  any  structure 
erected  by  the  side  of  the  track,  and 
must  necessarily  be  so  to  accommodate 
the  motion  of  the  car.  Passengers  know 
this,  and  must  regulate  their  conduct 
accordingly.  They  do  not  suppose  that 
the  agents  and  managers  of  tlie  road 
suffer  obstacles  to  be  so  placed  as  br.rely 
to  miss  the  car  while  passing.  And  it 
seems  to  us  almost  absurd  to  hold  that 
in  every  case,  and  under  all  circum- 
stances, if  the  pavty  injured  had  his 
arm  the  smallest  fraction  of  an  inch  be- 
yond the  outside  surface,  ho  was  want- 
ing in  ordinary  care  and  prudence.  Of 
course, a  case  might  be  supposed  where 
carelessness  would  be  clearly  aiiparent 
from  the  circumstances."  See  New  Jer- 
sey R.  Co.  V.  Kannard,21  Pa.  St.  20,1  There 
are  rulings  that  such  conduct  is  negli- 
gence,perse.  See  Pittsburg  etc.  U.  Co.  v. 
McClurg,  'M  Pa.  .St.  294 ;  Todd  v.  R.  Co.,  3 
Allen,  18;  80  Am.  Dec.  49;  7  A'.len,207; 
Pittsburg  etc.  R.  Co.  f.  Andrews,  39  Md. 

479 


§  308 


THE  ACTS  OF  THE  PASSENGER.  [PART  III. 


:■  . 

*'C 

i  i 

CO 

^' 

^ 

:^ 

c- 

t 

„.;Tl 

.ti" 

""i 

<t 

1 :          n1 

1 

••,Ll 

IT""* 


the  car,  or  with  his  arms  or  liis  feet  so  protruded  that 
they  would  inevitably  expose  him  to  danjj;er.' 

§  308.  Boarding  or  Leaving  Vehicle— While  to  leap 
upon  or  from  a  moving  train  is  not,  in  all  cases,  con- 
tributory negligence  per  sc,  yet  if  the  speed  at  the  time 
be  diangerously  gi'eat,  the  passenger  Avill  generally  be 
barred  from  recovering  for  injuries  received  thereby,- 
and  the  mere  fact  that  a  train  fails  to  stop,  as  is  its 
duty  to  do,  or  as  the  conductor  has  promised,  does  not 
justify  a  passenger  in  junij)ing  from  it  while  moving 
rapidly.-'  If  the  cars  are  going  very  slowly,  it  may 
not  be,  and  this  especially  in  the  ca»e  of  horse  cars.* 
If  it  were  done  at  the  order  or  instance  of  the  conductor 
or  other  officer  of  the  train,  it  would  be  excusable,'' 
but  the  case  is  different  if  the  train  has  stopped  a  suf- 


329;  17  Am.  Rep.  568;  Iiiilianapolis  etc. 
R.  Co.  f.  Rutherford,  2'JIii(i.  82;  92  Am. 
Dec.  .S3n ;  Morei  v.  Miss.  Inn.  Co.,  4  Bu.sh. 
5S!>;  liouisville  etc.  R.  Co.  r.  Sickings,  5 
Bush.l;  !)6  Am.  Dec.  320;  Uolbrook  r. 
R.  Co.,  12  X.  Y.  •2X6;  64  Am.  Dec.  602; 
Laing  r.  Colder,  8  Pa.  St.  470;  49  Am. 
Dec.  533. 

1  Spencer  v.  R.  Co.,  17  Wis.  487;  84  Am. 
Dec.  758.  It  would  hardly  be  claimed  to 
be  negligence  in  the  ca.-^e  of  horse  cars. 
Miller  r.  R.  Co.,6  Mo.  App.  471;  Dahl- 
berg  I',  a.  Co.,  32  Minn.  404  ;  50  Am.  Rep. 
685;  Germantown  l'as.s.  Co.  v.  llrophy, 
105  Pa.  St.  38;  Summers  v.  R.  Co.,  34  La. 
Ann.  139;  44  Am.  Rop.  419;  New  Orleans 
etc.  B.  Co.  r.  Schneider,  60  Fed.  Rop. 
210. 

2  Jeffersonville  etc.  R.  Co.  v.  IlendricKS, 
26Ind.  228;  Morrison  r.  R.  Co.,  56  N.  Y. 
302;  Knrrows  r.  R.  Co.,  63  N.  Y.  .WG; 
SThomp.  *  (!.  44;  Damontr.  R.  Co.,  9  I.a. 
Ann.  441 ;  61  Am.  Dec.  214  ;  Dougherty  r. 
R.  Co.,  86  111.  467;  Gavctt  v.  R.  Co.,  16 
Gray,  501 ;  77  Am.  Dec.  422 ;  I.ucas  v.  R. 
Co.,  6  Gray, 64 ;  66  Am.  Dec.  406 ;  Giunon  v. 
n.  Co.,  3  Rob.  (N\  Y.)  25;  Ulinoi.s  etc.  R. 
Co.  V.  Slatton,  54  111.  133;  5  Am.  Rep.  109; 
Penn.  Co.  v.  Aspell,  23  Pa.  St.  147;  62  Am. 
Dec.  323;  Kvansville  etc.  R.  Co.  i-.  Dun- 

480 


can,  28  Ind.  441 ;  92  Am.  Dec.  322 ;  De- 
troit etc.  R.  V.  CiirtLs,  23  Wis.  152;  99  Am. 
Dec.  141;  Central  R.  Co.  r.  Lelclier,fi9  Ala. 
106;  44  .\iii.  Ri'p.  505;  Masterson  v.  R.  Co., 
14  S.  K.  Rep.  571  ((Ja.) ;  Solomon  r.  R.  Co., 
103  N.  Y.  437;  56  Am.  Rep.  843;  Philips  v. 
R.  Co.,  49  X.  Y'.  177  ;  57  Harb.  G44  ;  Cliieago 
etc.  R.  Co.  I'.  .Scales,  90  111.  ,58r, ;  Knighl  v. 
R.  Co.,  23  I,a.  Ann.  462;  Hubenerc.  I{.  Co., 
23  La.  Ann.  492;  Jewell  r.  R.  C:o.,n4  Wis. 
6i0;4l  Am.  Rep.  63;  Sehepers  v.  R.  Co.,29 
S.  W.  Uep.  712  (.Mo.) ;  Jacob  v.  R.  Co.,  63 
X.  W.  Rep  505  (Mich.). 

J!  IJurpin  r.  II.  Co.  20  S.  K.  Rep.  473  (X. 
(.'.)  ;  Victor  f.  R.  Co.,  30  Atl.  Rep.  3si  il'a.). 

4  I'eoples  Pass.  Co.  c.  Green,  56  Mil.  h4; 
McDonough  I-.  R.  Co.,  137  .M/iss.  210;  Lp. 
pendorfr.  R.  Co.,  69  X.  Y.  195;  25  Am. 
Rep.  171 ;  Morrison  v.  R.  Co.,  liiOX.  V.  166; 
Mojlan  V.  R.  Co.,  59  llun.  619;  128  N.  V. 
583;  Connor  r.  R.  Co.,  105  Ind.  62;  Stager 
V.  R.  Co.,  119  Pa.  St.  70;  Hriggs  v.  H.  Co., 
148  Mass.  72;  Gawley  v.  R.  Co.,  7  X.  Y. 
(Sup]..)  854;  McLaughlin  r.  R.  Co.,  12  X. 
Y.  (Supp.)  458;  Wyattt'.  R.  Co.,  55  Mo. 
485;  Crissey  r.  R.  Co.,  75  P-.  .St.  83;  Phila- 
dt^lphia  etc.  R.  Co.  v.  Uassard,  75  Pa.  St 
367. 

•''  Post  <i  312. 


( 


CH.  XX.] 


THE  ACTS  OF  THE  PASSENGER. 


§308 


ficient  length  of  time  for  passengers  to  get  off,  and 
the  attempt  to  do  so  is  made  after  the  train  has 
started  ;*  or  if  the  passenger  gete  off  after  being  warned 
that  the  train  has  not  yet  reached  the  station  ;2  or 
knowing  thut  the  train  will  stop  at  the  station,  he  leaps 
off  before  it  has  come  to  a  stop/^ 

The  question  must  be  decided  in  the  light  of  the  sur- 
roundings,* and  two  Pennsylvania  cases  well  illustrate 
this.  In  Pcnnsyhania  Raihoad  ('onipainj  v.  Aspell,^  a 
passenger  was  riding  to  a  station,  but  on  account  of 
a  defect  in  the  bell  rope  which  prevented  the  conductor 
from  giving  the  signal,  the  train  passed  the  station,  al- 
though at  a  slackenwl  speed.  The  plaintiff,  seeing 
that  he  was  going  to  be  carried  beyond,  jumped  from 
the  car  and  injured  his  f^ot.  It  was  held  that  he  could 
not  recover  damages,  the  court  saying:  "If  a  passenger 
is  negligently  carried  beyond  the  station  where  he  in- 
tended to  stop,  and  where  lie  had  a  right  to  be  left  off, 
he  can  recover  compensation  for  the  inconvenience, 
the  loss  of  time,  and  the  labor  of  travelling  back;  be- 
cause these  are  the  direct  consequences  of  the  wronjj 
done  him.  But  if  he  is  foolhardy  enough  to  jump  off 
without  waiting  for  the  train  to  stop,  he  does  it  at  his 
own  risk,  Ixnause  this  is  gross  imprudence,  for  which 
he  can  blame  no  bodj'  but  himself.  If  there  be  any 
man  who  does  not  know  that  such  leaps  are  extremely 
dangerous,  especially  when  taken  in  the  dark,  his 
friends  should  see  that  he  does  not  travel  by  railroad." 
In  Panisi/Iraiiia  Raihoad  Coin  pa  ny  v.  Kihjorc,^  the  plain- 


!  IllinoiK  etc.  H.  Co.  v.  SliUton,54  111. 
139;  5  Am.  Hep.  109;  Tex.  -He.  U.  Co.  r. 
McGilvary,  29  S.  W.  Uep.  67  (Tex.). 

2  Ohio  etc.  U.  Co.  v.  Schiebe,  44  111.  4i>0. 

3  Ohio  etc.  n.  Co.,  r.Stnittou,  78  111.  88; 
South,  etc.  U.  Co.  r.  Schanffler,  75  Ala. 
l.TO.  Compare  Kentucky  etc.  K.  Co.  v. 
Dills,  4  Bush,  S93. 

82 


*  Johnson  i>.  U.  Co.,  70  Pa.  St. 369 ;  Texas 
etc.  U.  Co.  V.  Murphy,  46  Tex.  356;  26  Am. 
Uep.  272. 

«  23  I'll.  St.  147 ;  62  Am.  Dec.  323. 

«  32  I'a.  St.  272;  72  Am.  Dec.  787 
f.  11.  Co.,  53  Mo.  509. 


481 


Loyd 


'ff 


308 


THE  ACTS  OF  THE  PASSENGER.  [PART  III. 


tiff,  accompanied  by  three  young  cliildren,  on  arriving 
at  her  destination,  proceeded  to  alight;  two  of  the 
children  had  done  so,  and  while  the  plaintiff  was  still 
on  the  train,  the  cars  started,  when  she  sprang  upon 
the  platform  of  the  station,  on  which  one  of  the  chil- 
dren had  fallen  prostrate,  and  was  injured.  It  was 
held  that  this  was  not  such  negligence  as  would  pre- 
vent her  recovering  damages.  The  court  here  said: 
'That  it  is  wrong  for  a  party  to  attempt  to  leave  cars 
whilst  they  are  in  motion,  is  an  abstract  truth  that 
counsel  complain  of  the  court  for  not  misapplying  here. 
It  is  one  thing  to  define  a  principle  of  law,  and  a  very 
different  matter  to  api)ly  it  well.  The  rights  and  du- 
ties of  parties  grow  out  of  the  circumstances  in  wliich 
they  are  placed.  It  was  as  natural  for  this  woman  to 
leave  the  cars  as  she  di<l  in  her  circumstances,  as  it  was 
rash  for  Aspell  to  leap  from  them,  in  his  circumstances. 
It  would  be  as  unreasonable  to  impute  negligence  to 
her,  as  it  would  have  been  to  have  held  the  company 
responsible  to  him." 

In  a  recent  case  in  Louisiana  it  was  held  that  a  pas- 
senger on  a  train,  with  a.  tit-ket.  for  a  station  at  which  it 
is  customary  for  the  train  not  to  stop,  but  to  slow  it.s 
movement,  so  a»  to  allow  i)a^!senger«  to  alight,  will  W 
entitlcil  to  damages  if,  called  to  the  platform  by  the 
announcement  of  the  ■station,  he  is  thrown  from  the 
steps  of  the  car  and  injured;  his  fall  being  caused  by 
the  sudden  increase  of  the  sj)eed  of  the  train,  when  it 
should  hav^  been  slowed  or  stojiped.*  The  court  said 
that  the  cases  in  the  reports  where  it  ivS  held  that  the 
passenger  carried  beyond  his  station,  cannot  recover 
damages  caused  by  jum])ing  from  a  movi'-  ;  train,  have 
no  application  to  this  case.  "The  plaintiff  was  invited 
by  the  train  signal  to  leave  his  si»at  and  go  to  the  plat- 

1  Brasbaer  v.  It.  Co.,  17  South.  Uep.  261. 
482 


OU.  XX.] 


THE  ACTS  OF  THE  PASSENGER. 


§308 


form.  Under  the  natural  expectation  that  the  train 
would  slow,  if  not  stop,  to  enable  him  to  alight,  it  can- 
not be  deemed  negligence  that  he  stood  on  the  steps  of 
the  car.  It  is  urged  on  us  that  his  station  was  passed, 
and  he  went  from  one,  i.  e.  the  station,  side,  to  the  other, 
and  was  standing  on  the  steps  on  that  side  when  the 
accident  occurred.  This  was  because  he  supposed,  as 
he  states,  not  putting  him  out  at  the  station,  it  was  in- 
tended  to  slow  up  at  the  mill,  a  few  feet  beyond.  We 
cannot  hold  tbat  this  change  in  his  position,  induced  by 
the  natural  expectation  of  a  chance  to  alight  that  the 
company  owes  to  its  passengers,  charges  the  plaintiff 
with  negligence.  C^alled  to  tht^  platform  and  to  the 
steps  of  the  car, — f(tr  that  is  the  significance  of  the 
whistle,  and  the  announcement  of  the  station  by  the 
train  official, — the  train  is  neither  slowed  nor  stopped, 
passes  the  station  and  the  mill  with  a  speed  accelerated, 
when  it  should  have  been  dimiuislied,  and  tlie  result 
is  that  tlw'  plaintilT  is  thrown  to  the  ground  and  injured. 
We  tliink  tlie  record  shows  a  case  of  responsibility  of 
the  defendant." 

A  passenger  may  be  placed  iu  a  perilous  situation, 
where  the  only  escape  lie  sees  is  to  leap  from  tbe  mov- 
ing vehicle.  lie  does  so,  and  is  iujuivd,  while  had 
he  not  taken  this  step,  be  would  have  received  no  hurt, 
the  danger  being  api)arent  and  not  real.  Nevertheless, 
the  carrier  will  be  responsible,  if  his  neglect  has  forced 
upon  the  i)assenger,  in  tbe  words  of  Lord  Ellenborough, 
"a  ])erilous  alternative."*     One  cannot,  through  his  de- 


demand  th 
1  extricatin 


he 


fault,  i)ut  anotber  in  peril,  and  then 

shall  exercise  a  high  degree  of  prudenc 

himself.-     If,  however,  tbe  passenger  acts  on  a  rash 


1  Jones  r.  Hoyce,  1  Stark.  493. 

2  InRallsr.  Hills,  9  Met.  1;  ii  An.  Dec. 
346;  Frink  r.  I'otter,  17  U\.  406;  McKin- 


ney  c.  Xeil,  1  McLean,  540;  Unci  v.  R. 
Co.,,'!!  \.  Y.  314;  88  Am.  Dec.  271;  El- 
(hiiige  v.  U.  Co.,  1  Saud.  69;  Wilson  v.  1!. 

483 


§308 


THE  ACTS  OF  THE  PASSENGER.  [PART  III. 


Jill 
I'll 

VJ 


•■"'v. 


'v:.-« 


MM.OM 

WO 


apprehension  of  clanger  which  did  not  exist,  and  con- 
sidering all  the  circumstances,  did  what  an  ordinarily 
prudent  man  would  not  have  done,  the  carrier  is  not 
liable.  "If,"  as  has  been  said,  "a  man  wrongfully 
menaced  with  a  switch,  should  purposely  leap  over  a 
dangerous  precipice  in  order  to  escape  a  possible  stroke, 
it  could  hardly  be  claimed  that  he  could  recover  for 
an  injury  caused  by  the  stroke."  Thus,  where  a  pas- 
senger in  the  caboose  of  a  moving  freight  train, 
frightened  by  the  falling  of  a  pile  of  lumber  from  a 
flat-car  next  before  the  caboose,  jumped  out,  it  was 
held  that  he  was  to  blame  for  the  injuries  sustained, 
even  though  the  company  was  negligent  in  piling  the 
lumber  so  that  it  could  fall.^  The  question  is,  however, 
always  one  of  reasonable  cause,  and  in  a  novel  case 
in  Missouri,  a  carrier  was  held  liable  for  injuries  to  a 
passenger  who  leaped  from  a  moving  train  through 
fear  induced  by  the  conductor  and  several  passengers 
as  a  hoax,  pretending  to  be  robbers,  and  to  be  about  to 
bind  him  and  throw  him  from  the  train.^  In  a  some- 
what similar  case  in  Michigan,  a  judgment  was  affirmed 
against  a  street  railroad  company  in  an  action  bj'  a 
woman,  who,  to  avoid  the  repetition  of  an  insult, 
jumped  from  a  moving  car.^  And  of  course,  though 
the  grounds  of  apprehension  of  danger  are  reasonable, 
if  thev  are  not  caused  bv  the  fault  of  the  carrier,  he 
is  not  liable,*  In  an  Illinoi'^  case,'"'  a  train  running  ou 
a  double  track  road   was  stoppnl    by   a   snow   bank. 


>  I 


Co., 23  Minn.  278 ;  37  Am.  Rep.  410 ;  .'^otitli ■ 
western  It.  Co.  r.  Panlk,  24  Ga.  .^66;  Iron 
R.  Co.  r.  Mowt  ry,  36  Ohio  St.  418  ;  38  Am. 
Rep.  507 ;  Pitts,  etc.  R.  Co.  r.  Maitin,  S2 
Ind.  476;  Uuff  r.  R.  Co.,  14  Fed  Rep.  558; 
Lawrence  f.  Green,  70  Cal.  417;  B9  Am. 
Rep.  428 ;  Twomley  v.  R.  Co.,  09  X.  Y.  l.W ; 
25  Am.  Rep.  162;  Gnlf  etc.  R.  Co.  r.  Wal- 
lon,  65  Tex.  568. 
1  Woolery  v.  R.  Co.,    107   Ind.  381;  07 

484 


Am.  Kep.  114;  Ciult  etc.  1!.  (d.  i:  WalliMi, 
65  Tex.  568;  St.  I.<mis  etc.  R.  Co.  v.  Mur- 
ray, 18  ,'<.  W.  Rep.  50  (Ark.). 

2  Spohn  r.  R.  Co.,  87  Mo.  74;  191  ra.  418; 
116  /(/.  617;  122  Id.  1 ;  14  S.  W.  Rep.  880. 

3  Ashton  v.  R.  Co.,  44  N.  \V.  Rep.  141. 
•1  Kleiber  v.  R.  Co.,  17  S.  W.  Rep. 946. 

«  Cliieago  etc.  R.  Co.  i-.  Felton,  125  III. 
4.58;  17  N.  K.  Rep.  765. 


OH.  XX  ] 


THE  ACTS  OF  THE  PASSENGER. 


§308 


There  was  a  curve  ou  th-e  track  at  that  point  and  during 
the  night  some  of  the  passengers  saw  the  approaching 
light  of  a  locomotive  which  they  supposed  was  on  the 
same  track  with  them,  and  heard  s-everal  short,  sharp 
whistles  which  they  took  for  danger  signals.  One  of 
the  passengers,  the  plaintiff,  being  greatly  alarmed  and' 
fearing  a  collision  ran  out  of  the  car,  and  in  jumping 
from  th'e  train  was  injured.  The  light  was  from  a  snow 
plow  which  was  on  tlie  other  track  and  which  had  been 
sent  to  assist  the  blocked  train.  It  was  held  that  the 
carrier  was  not  liable.  The  Court  said  that  the  blow- 
ing of  the  whistle  being  the  proper  signal  to  acquaint 
those  in  charge  of  the  passenger  train  of  the  approach 
of  the  snow  plow  waS'  not  negligence.  The  purpose  of 
giWng  signals  of  this  kind  is  not  to  notify  the  passenger 
but  to  notify  those  in  charge  of  the  train  of  the  presence 
of  the  approaching  train.  "Communications  are  ordi- 
narily made  with  passengers  in  regard  to  matters  affect- 
ing them,  personally  by  the  conductor,  more  rarely  by 
porters  or  other  employees,  but  the  passenger  is  ne^-^r 
required  to  understand  and  heed  any  eignal  gi^-^n  by 
the  whistle  of  the  engine.  The  running  into  the  enow 
bank  by  the  passenger  train  w^as  an  inevitabl-e  casualty, 
and  the  carrier  was  proceeding  with  care  to  extricate 
the  train  from  the  bank.  There  was  no  negligence  ou 
the  part  of  any  of  ithe  employees  of  the  company,  and 
without  proof  of  some  negliect  on  their  jKirt,  the  carrier 
could  not  be  held  responsible  for  the  injury." 

The  carrier  is  likewise  liable  for  an  injury  incurred 
by  a  passenger  in  attempting,  by  an  act  not  obviously 
dangerous,  to  obviate  an  inconvenience  to  himself, 
caused  by  the  carrier's  fault.^  In  Maryland,  a  pas- 
senger, while  sitting  near  the  front  door  of  a  crowded 


1  Patt.  Ry.  Ace.  L.  16. 


485 


m 

§310 


THE  ACTS  OF  THE  PASSENGER.  [PART  III. 


I    I 


and  dark  car,  in  passing  through  a  long  tunnel,  at- 
tempted to  shut  the  door  (there  being  no  one  at  hand 
to  do  it),  in  order  to  keep  out  the  smoke  and  cinders, 
and  received  an  injury  in  doing  so.  The  carrier  was 
held  liable.^ 

309.  Other  Cases.  —  It  has  been  held  not  con- 
tributory negligence  per  .sr  to  board  a  train  at  a  place 
not  the  station  platform,-  nor  i«  it  necessarily  negli- 
gent to  get  upon  a  crowded  excursion  car,''  nor  to  ntop 
upon  a  connecting  link  between  two  cars  in  alighting, 
after  the  train  had  stopped;*  nor  to  stand  on  the  deck 
of  a.  ship  under  a  suspended  boat;'"'  or  in  t lie- carriage 
way  of  a  ferry  boat;"  nor  to  i)lace  one's  hand  on  an  open 
door  or  the  door  janiib,  to  aid  in  mountiirg  the  steps.'^ 
But  it  is  negligence  to  crawl  under  a  freight  train  with 
steam  up.^ 

§  310.  Loss  of  Bagrsragrc.  — The  negligence  of  the 
passenger  may  bar  an  action  against  a  carrier  for  the 
loss  of  his  baggage,  as  where  a  passenger,  on  leaving 
the  train  at  his  destination,  forgot  to  take  his  overcoat 
which  he  had  placed  on  the  seat;'*  where,  on  leaving  the 


1  West.  R.  Co.  r.  Stanley,  fil  Mil.  2r.r,;  4S 
Am.  Kcp.  96;  See  v.  U.  Co.,  L.  U.  8  Q.  B. 
161 ;  Adams  r.  K.  Co.,  I,.  K.  4  ('.  V.  744. 

2  Stover  r.  U.  Co,">S  InU.  384;  49  Am. 
Rep.  764. 

3  Lyun  V.  R.  Co.,  if,  I'ac.  Rep.  1018 
(Cal.). 

4  Johnson  r.  R.  Co.,  II  Minn.  276;  88 
Am.  Dec.  8H. 

»  Simmons  v.  R.  Co.,  97  Mass.  361 ;  100 
Mass.  34. 

6  Hazman  v.  Hoboken  Land  etc.  Co.,  2 
Daly  130. 

7  Foidham  v.  R.  Co.,  L.  R.  i  C.  1'.  368; 
Coleman  v.  R.  Co.,  4  H.  &  C.  699. 

8  Chicago  etc.  R.  Co.  v.  Cross,  73  111. 
894;  Chicago  etc.  R.  Co.  v.  Dewey,  26  111. 
265;  79  Am.  Dec.  374.  But  see  Allender 
f.  K.  Co.,  37  la.  264. 

486 


0  Tower  r.  R.  Co.,  7  Hill,  47;  42  Am. 
Dec.  30,  live  Court  saying:  "  The  lows  in 
this  case  occurred  through  the  (jroHs 
noKlect  of  the  ))laintilf.  Common  sense 
and  attention  on  his  ))art  would  have 
prevented  it.  A  passenger  niif?lit  as 
reasonably  complain  because  he  had 
forgotten  to  leave  the  cars  at  the  point 
ot  destination  and  been  curried  beyond 
it,  as  to  do  so  in  a  case  like  tlic  ]ire>ent. 
The  carrier  is  not  bound  to  act  as  guar- 
dian (or  his  passenger,  and  treat  linn  as 
a  ward  under  age.  The  passenger  niust 
at  least  assume  the  responsibilly  ot 
taking  ordinary  care  of  himself,  includ- 
ing the  wearing  apparel  about  his  per- 
son." 


CII.  xx.J 


THE  ACTS  OF  THE  PASSENGER. 


§312 


car  be  left  liis  pocket  book  bebiiid  on  the  seat;^  where 
a  passenger  whose  portmanteau  bad  been  placed  at  his 
request,  in  the  car  with  bini,  got  out  at  a  way  station 
and  then  carelessly  failed  to  get  into  the  same  car 
again,  but  finished  his  journey  in  another  car.-  And 
it  has  been  ruled  in  Che  Supreme  Court  of  the  United 
States  that  a  railroad  is  not  liable  for  a  loss  resulting 
to  a  passenger  from  its  refusal  to  stop  the  train  upon 
which  he  was  riding,  short  of  a  usual  station,  to  en- 
able him  to  recover  a  hand-bag  containing  a  large  sum 
of  money  and  valuable  jewelry  which  he  was  carrying 
with  him,  and  which  he  dropped  from  the  window  of 
the  car,  while  attempting  to  lower  the  eash.'' 

§311.  Passenger  on  Sleeping:  Car. — A  passen- 
ger on  a  sleeping  car  was  held  guilty  of  contributory 
negligence  Avhich  would  bar  his  action  for  the  i)ropert\ 
stolen,  where,  on  getting  out  of  his  berth  in  the  morn- 
ing, he  went  to  the  lavatory,  leaving  in  the  pockets 
of  his  vest  under  bis  pillow,  his  watch  and  a  large  sum 
of  money.*  So,  where,  on  leaving  the  car  at  a  station 
for  refreshments,  he  left  his  satchel  on  the  sill  of  an 
open  window  within  easy  reach  of  anyone  on  the  plat- 
form .•"' 

§  3 1 2.  Acts  of  Passengers  Resulting  from  Direc- 
tions of  Carrier's  Servants. — Where  the  dangerous 
position  is  assumed  by  direction  or  invitation  of  the 
servant  of  the  carrier,  or  on  his  representation  that  it 
is  not  unsafe,  the  carrier  will  be  liable."     This  has  been 


\  li 


1  III.  Cent.  U.  Co.  r.  Handy,  63  Miss. 
609;  56  Am.  Uep.  846. 

2  Talby  v.  IJ.  Co.,  L.  R.  6  C.  P.  44. 

3  Henilersou  v.  K.  Co.,  20  Fed.  Uep. 
430;  I'M  U.  S.  Gl,  8  S.  Ct.  Hep.  60. 

4  Root  i\  Sleeping  Car  Co., 28  Mo.  App. 
l'.»9;  Wilson  v.  K.  Co.,  S'i  Mo.  App.  682. 

6  Whitney  v.  Pull.  Pall.  Co.,  143  Mass. 
243. 


6  O'Donnell  v.  R.  Co.,  59  Pa.  St.  239;  98 
Am.  Dec.  336 ;  Penn.  R.  Co.  v.  McCloskey, 
23  Pa.  St.  52G;  Eilgerton  v.  II.  Co.,  39  N. 
\.  227;  Indianapolis  etc.  R.  Co.  v.  Horst, 
93  U.  S.  291;  Louisville  etc.  U.  Co.  v. 
Kelly,  92  Ind.371 ;  Poole  r.  R.  Co., 56  Wis. 
227;  Creed  v.  R.  Co.,  86  Pa.  St.  1.39;  Cole - 
grove  I'.  U.  Co.,  20  N.  Y.  462;  Waterbnry 
V.  R.  Co.,  17  Fed.  Rep.  671. 

487 


f 


§313 


THE  ACTS  OF  THE  PASSENGER.  [PART  III. 


I  I 


ruled  where  the  passenger  has  been  invited  by  the  car- 
rier's servant,  to  ride  in  a  vehicle  not  otherwise  a 
proper  vehicle;^  or  on  the  platform  of  a  car;-  or  pass- 
ing from  one  car  to  another  while  in  motion;-'  or  enter- 
ing the  train  at  a  wi'ong  time  or  place;*  or  crossing 
tracks  to  reach  a  car;-'*  or  going  under  a  freight  car 
for  the  same  purpose;"  or  leaving  the  train  while  in 
motion;^ —  all  at  the  invitation  or  direction  of  a  servant 
of  the  carrier. 

There  are  cases  in  which  this  principle  has  been  de- 
nied;** and  it  is  generally  not  api)licable  where  the 
danger  is  so  obvious  that  a  reasonably  careful  man 
would  not  obey  the  order  or  accept  the  invitation;'' 
or  Avhere  the  servant  was  not  expressly  or  imi)lie<lly 
authorizedi  to  give  the  invittition.^*' 

§  313.  Contributory  Negligence  of  Tliird  Persons. 

— The  carrier  is  responsible  for  an  injury  to  a  passen- 
ger caused  by  the  concurrent  negligence  of  the  carrier 
and  a  third  person  not  connected  with  him,  the  plaint- 


1  As  on  the  locomotive:  Hanson  r.  U. 
Co., 38  La.  Ann.  Ill ;  58  Am.  Rep.  1G2  ;  Wa- 
terbnry  v.  U.  Co.,  17  Fed.  Uep.  672 ;  in  the 
baggage  car:  O'Dounell  v.  U.  Co.,  59 
Pa.  St.  239 ;  98  Am.  Dec.  3H6 ;  Watson  f.  li. 
Co.  24  U.  C.  Q.  IJ.  98;  Carroll  r.  R.  Co.,  1 
Dner,  571;  Washbnrn  f.  K.  Co.,  3  Head, 
6m;  15  Am.  Dec.  784;  Kentucky  R.  Co.  v. 
Thomas,  79  Ky.  100;  42  Am.  Rep.  208. 

2  Sheridan  v.  U.  Co.,  36  N.  Y.  39;  93 
Am.  Dec.  490. 

3  Cleveland  etc.  R.  Co.  v.  Manson,  30 
Ohio  St.  451;  Louisville  etc.  R.  Co.  v. 
Kelly,  93  Ind.  626;  Mclntyre  v.  R.  Co., 
37  N.'  y.  287. 

4  Detroit,  etc.  R.  Co.  r.  Curtis,  23  Wis. 
152 ;  09  Am.  Dec.  141 ;  Allender  f.  R.  Co., 
43  la.  276. 

»  Bait.  etc.  R.  Co.  r.  State,  63  Md.  1.35; 
Warren  r.  K.  Co.,  8  Allen,  227. 

•  Chicago  etc.  R.  Co.  c.  Sykes.ys  111. 
362. 

T  Georgia  etc.  R.  Co.  i'.  McCnrdy,  45 
Ga.  288;  12  Am.  Rep.  577;  I.«mbeth  v.  R. 

488 


Co.,  66  N.  C.  404  ;  S  Am.  Rep.  508;  T.ovett 
V.  R.  Co.,  9  Allen,  557;  Filer  v.  R.  Co.,  68 
N.  Y.  124 ;  69  .\.  Y.  351 ;  49  N.  Y.  47 ;  \Vyat» 
V.  R.  Co.,  55  Mo.  485;  Doss  v.  R.  Co.,  59 
Mo.  27;  21  Am.  Rep.  371;  Illinois  etc.  R. 
Co.  V.Abie,  59  111.  131 ;  Chicago  etc.  R. 
Co.  r.  Randolph,  u3  111.  510;  5  Am.  Rep. 
60;  Galveston  etc.  R.  Co.  v.  Smith,  59 
Tex.  406;  Bucher  v.  R.  Co.,  98  N'.  Y.  128; 
International  R.  Co.  r.  Ilassell,  62  Tex. 
256;  60  Am.  Rep.  525;  Rait.  etc.  1£.  Co.  i-. 
Leafley,65  Md.  671 ;  St.  Ix)nis  etc.  R.  Co  .v. 
Cantwell,37  Ark.  519. 

«  Rardwell  v.  R.  Co.,  63  Miss.  674;  56 
Am.  Rep.  842;  Pcnn.  R.  Co.  v.  Langdon, 
92  Pa.  St.  21 ;  37  Am.  Rep.  651. 

9  Hazzard  v.  R.  Co.,  1  Riss.  603;  Chi- 
cago etc.  R.  Co.  V.  Randolph,  53  III.  510; 
Rait.  etc.  R.  Co.  r.  Jones,  95  U.  S,  4.TO; 
South,  etc.  R.  Co.  i>.  Singleton,  67  Ga, 
316 ;  66  Id.  252. 

10  Lafayette  etc.  R.  Co.  f.  .Miles, 40  Ark. 
298 ;  Flower  r.  R.  Co  ,  69  Pa.  St.  210;  Duff 
v.R.  Co  ,  91  Pa.  St.  468. 


1 


OH.  XX.] 


THE  ACTS  OF  THE  PASSENGER. 


§314 


iff.*  In  one  case,  a  stage-coach,  by  the  uegiigeuce  of  the 
driver,  was  precipitated  into  a  dry  canal;  the  lock- 
keeper  negligently  opened  the  gates  of  the  canal,  and 
drowned  the  paissenger;^  in  aiiotlivr,  a  boy,  a  pa««enger 
on  a  street  car,  was  compelled  by  the  conductor,  to  stand 
on  the  platform,  from  which  he  was  thrown  and  in- 
jured by  the  negligence  of  another  passenger  in  leav- 
ing the  car.^  In  both  these  cases,  the  caiTier  wa^  held 
liable. 

§314.  Contributory  Negligence  of  Persons  in 
Cliarge  of  Cliildren.  — A  child  of  tender  years 
cannot  be  guilty  of  contributory  negligence,''  so 
as  to  bar  its  action  for  damages  for  a  negli- 
gent tort.  And  contributory  negligence  on  the 
part  of  its  parents  or  guardians  in  permitting 
it  to  wander  at  large,  will  not,  in  most  of  States,^ 
bar  the  recovery  of  damages,  unless  at  the  time  the 
parent  or  guardian  was  present,  directing  its  acts." 
But  where  the  action  is  for  a  tort  founded  upon  a  con- 
tract, the  contributory  negligence  of  the  contracting 
party,  will  bar  a  recover^^  by  the  person  on  whose  be- 
half the  contract  was  made.^  In  a  leading  English 
case,  the  plaintiff,  a  child  of  five,  was  in  charge  of  its 
grandmother,  who  procured  tickets  for  both  at  the  sta- 


1  Byrne  v.  Wilson,  16  I.  K.  C.  I..  N.  S. 
882;  Sheridan  v.  11.  Co.,  36  N.  Y.  39;  U3 
Am.  Dec.  490;  Eaton  v.  H.  Co.,  U  Allen, 
600;  87  Am.  Dec.  730;  Spooner  v.  K.  Co., 
64  N.  Y.  230;  13  Am.  Rep.  570;  St.  Joseph 
etc.  U.  Co.  V.  Hedge,  62  N.  W.  Hep.  b87 
(Neb.) ;  McDonald  v.  K.  Co.,  17  South. 
Kep.  873  (La.). 

a  Byrne  v.  Wilson,  15  I.  R.  C.  L.  N.  S. 
332. 

3  Sheridan  v.  R.  Co.,  .16  N.  Y.  39;  93 
Am.  Dec.  490. 

*  Lawson  Rights,  Rem.  &  Pr.  §  ViOS. 
Magnan  v.  R.  Co.,  38  N.  Y.  465;  98 
Am.  Dec.  66;  O'Mara  v.  R.  Co.,  38  N.  Y. 


445;  9S  Am.  Dec.  61 ;  Daly  v.  R.  Co.,  26 
Conn.  591 ;  68  Am.  Dec.  413 ;  Schmidt  r.  U. 
Co.,  2.)  Wis.  186;  99  Am.  Dec.  1,5S;  Kast 
Tenn.  R.  Co.  v.  St.  John,  5  Snecd  524 ;  73 
Am.  Dec.  149;  Frick  v.  R.  Co., 75  .Mo.  595; 
Central  Trust  Co.  v.  B.  Co.,  81  Fed.  Rep. 
246. 

«  Winters  v.  R.  Co.,99  Mo.  609.  The 
contrary  is  hero  in  other  States.  See 
the  cases  collected  in  Lawson  Rights, 
Rem.  &  I'r.  §  1210. 

6  iJruthen  v.  R.  Co.,22  Fed.  Rep.  609; 
Stillson  V  R.  Co.,  67  Mo.  671. 

7  Patt.  By.  Ace.  L.,88. 

489 


fl 


■■Ml 


am- 


§314 


TIIK  ACTS  OF  Tllfc;  I'ASSENOEK.  [PART  III. 


tion,  but  ill  crossiu'j;  tlie  track  for  the  purpose  of  reach- 
ing' a  i)latl'()rni,  they  were  run  down  by  a  train,  under 
circuinstanccH  (as  a  jury  found),  of  concurront  iiej^ligcuce 
on  tlie  part  of  tlie  grandmother  and  tlie  servants  of 
the  railroad.  Tlie  grandmother  was  killed,  ami  the 
plaintiff  suffered  personal  injuries,  for  which  the  suit 
was  brought.  It  was  held  that  the  infant  eould  not 
recover.  (•(K'kburn,  (\  J.,  said  that  where  a  person  of 
tender  years,  unable  to  take  care  <»f  himself,  presentiij 
himself  for  passage  on  a  vehicle,  the  contract  of  con- 
veyance is  on  the  imjdied  condition  that  the  child  is  to 
be  conveyed  subject  to  due  and  ju'oper  care  on  the  part 
of  the  person  having  it  in  charge.  And  Pollock,  C.  K, 
thought  that  there  was  uo  dilTerence  between  a  person 
of  tender  years  under  the  care  of  another,  and  a  valu- 
able chattel,  so  far  as  the  responsibility  of  the  carrier 
was  concerned.'  Tliis  priiuci])le  has  been  followed  in 
the  United  Sta-tes.-  lu  oine  case  an  imfant  twelve  years 
of  age  in  t\m  care  of  her  parents,  \Vi\R  a  passenger  upon 
defendaut'.s  cars.  As  the  train  approached  the  station 
where  «he  was  to  alight,  the  conductor  called  out  the 
name  of  the  station  and  tlie  cars  stopped.  It  was  even- 
ing and  dark.  PlaintilT  and  her  parents  arose  to  leave, 
but  before  they  got  out  of  the  car  the  train  started  and 
moved  slowly  by  the  station.  The^-,  knowing  the  train 
was  in  motion,  passed  out  on  the  platform  of  the  car, 
and  whil(»  the  train  was  still  moving,  and  after  it  had 
passeil  the  platfonn  of  the  station,  ])laiiitiff's  father  took 
Ixer  under  his  arm,  stepped  from  thv  car,  fell,  and  she 
was  injured.  It  was  held  that  jdaintiff,  was  chargeable 
with    the   contributorv   negligence    of  her   father   in 


charge  of  her.^ 

1  Waitc  V.  B.  Co.,  Kl.  n.  &  Kl,  719. 

2  Ohio  etc.  U.  Co.  v.  Stratton,  78  111.  88; 
Fleniinjfv.  K.  Co.,  1  Abb.  N.  (.'.  433;  Wil- 
iets  V.  R.  Co  ,  14  Harb.  1210;  The  Bur^n- 
dia,  29  Fed.  Uep.  464. 

490 


«  Morrison  v.  R.  Co.,  86  N.  Y.  212;  Ohio 
etc.  U.  Co.  V.  Stratton,  supra. 


I 


CII.  XX.] 


TIIK  ACTS  OF  THK  PASSExVilKR. 


§315 


§  315.  Contributory  NegHpfonco  of  Carrier  of  Pas- 
sengers.—Tho  n('jj;lip'n('('  of  the  currior  ciinnot  bo  im- 
puted to  tlK'  pjiHscnjfcr.  In  the  ci'lcbratcd  Enjj;lish 
«aso  of  ThofDijood  v.  linjan,^  a  i)asH('nj;('i'  in  an  oinnibuH, 
in  alighting,  was  run  over  by  an  omnibus  of  another 
lino  owno<l  by  the  defendant.  There  was  negligence 
both  on  the  part  of  the  plaintiff's  driver  and  the  de- 
fendant's driver,  an«l  it  was  held  that  the  plaintitl*  was 
so  identitied  with  his  driver,  being  under  his  control 
at  the  time,  so  to  speak,  that  his  negligence  barre<l  a 
re<'overy.  This  decision  has  not  Ik'ou  followed  in  Eng- 
land,- and  is  i)robably  now  overruled.'  Except  ia 
Pennsylvania,"'  the  doctrine  of  Thoroijood  v.  linjnn  ha.* 
been  repudiated  in  the  United  States,  for  the  reasons 
given  by  Mr.  Justice  Field,  in  LUtle  v.  Ilacbit."'  "Tlu' 
identllication  of  the  i)assengor  with  the  negligent 
driver  or  the  owner,  without  his  personal  co-operation 
or  encouragement,  is  a  gratuitous  assumption.  There 
is  no  such  identity.  The  i)artios  are  not  in  the  same 
position.  The  owner  of  a  public  conveyance  is  a  car- 
rier, and  the  driver  or  the  person  managing  it  is  his 
servant.  Neither  of  them  is  the  servant  of  the  pas- 
senger; and  his  asserted  identity  with  them  is  contra- 
dicted by  the  daily  experience  of  the  Avorld.'"' 


1  8  0.  u.  iiri. 

2  .Sco  l{i^'l)y  r.  Hfwitt,  5  Kx.  240. 

5  Sr..  Tin-    It.Tiioiia,  I,.  I'.  12  I'.  I).  68. 

*  I.oL'khart  l:  Liohtenthaler,  4C  I'u.  .St. 
164. 
«  IIG  V.  s.  .s,sr>. 

6  Ilcnnottr.  U.  Co..  .16  N.  .J.  1,.  225;  13 
Am.  Uop.  4.%;  Ohiipmiui  r.  U.  Co.,  V.)  X. 
y.  841 ;  75  Am.  Dec.  344 ;  Colgro .  i;  v.  U. 


Co.,  20  X.  Y.  41)2 ;  6  Diior,  ,R82 ;  Wobftpr  v. 
K.  Co.,  38  N.  V.  2i;();  Danvilli;  I'o.  v. 
Stewart,  2  Ml  t.  (Ky.)  ll'J;  I.oiii>villc  vtc. 
1{.  Co.  r.  Caso,  !t  P.iisli,  72S;  Joliiisou  v. 
n.  Co.,32X.  Y.  nUTjHS  Am.  Di;c.  3s3 ; 
Holzab  r.  11.  Co.,  ?,S  I.a.  Ann.  18.');  58  Am. 
Ucp.  177 ;  Perez  v.  U.  Co.,  47  Lii.  Ann.  1 ; 
17  South.  Kep.  869. 

491 


mm^t^ 


•Id 


1       I 


PART  IV. 


OTHER  EXCEPTIONAL  BAILMENTS. 


493 


?fl»HPP 


5;.^ 


i  ! 


p<i>M 


CHAPTER  XXI. 
THE  ti;legraph,  telephone  and  other 

MODERN    AGENCIES. 


Section  31G.  Duties  and  Obligations  of  Telegrapli  Companies. 

317.  Telef^rapli  Compan}'  not  an  Insurer, 

318.  Action  may  be  IJroujilit  l)y  Addressee. 

319.  Limitation  of  Liability  by  Contract. 

320.  Conditions  Contained  in  Telegraph  Blanks. 

321.  Connecting  Lines. 

322.  Contributory  Negligence  of  Sender. 

323.  Telephone  Companies. 

324.  Sleeping  Car  Companies  not  Common  Carriers, 

325.  Not  Liable  as  Innkeepers. 

326.  Contrary   View  —  Sleeping   Car   Company   Liable    as    an 

InnkeciiL'r. 

327.  This  View  Sustained  in  Nebraska. 

328.  The  liiability  of  the  Sleeping  Car  Company. 

329.  Passenger  Elevators. 

330.  Postmasters  and  Mail  Carriers. 

§  310.  Duties  and  Obligations  of  Telegraph  Com- 
panies. — Like  tlic  coinin^ii  cuiTier,  tlio  tologTupli  com- 
pany is  a  public  aoency,  subject  to  public  regulation 
and  control.^  It  is  a  public  carrier  of  iutelligeuce, 
Avith  rights  and  duties  analogous  to  those  of  a  public 
carrier  of  goods  or  passengers.-  It  is  a  public  institu- 
tion serving  a  public  purpose.  Nor  does  it  do  so 
without  consideration  for  "the  exercise  of  the  right 
of   eminent    domain,   is   a    condition   essentially   pre- 


1  Western  U.Tel.  Co.  i'.  Carew,  15  Mich. 
625;  New  York.  etc.  Tel.  Co.  f.  Dryburg, 
35  Pn.  St.  302;  78  Am.  Dec.  338;  Western 
U.  Tel.  Co.  V.  n!irtlett,62  Me.  217;  IG  Am. 
Kop.  437 ;  ])e  Ilntte  r.  Tel.  Co.,  30  Uow.  I'r. 
413;  1  Daly,  517;   Wann  r.   Tel.  Co.,  37 


74  111.  1G8;  Passmorc  v.  Tel.  Co.,  78  Pa. 
8t.  242;  Kllis  r.  Tel.  Co.,  13  Allen,  228; 
Fowler  r.  Ti'l.  Co.,  80  Me.  3S1 ;  6  Am.  .St. 
Uep.  211 ;  15  Atl.  Rep.  29 ;  2  Stim.  Am.  St. 
L.  81150. 
2  West.    U.    Tel.    Co.  i:  Call  I'ub.  Co., 


Mo.  481 ;  90  Am.  Dec.  395;Tyler  v.Tel.Co.,       62  N.  W.  Rep.  506  (Neb.). 


495 


§316 


MODERN  AGKNCIES. 


[part  IV. 


a 


^5 

■:rj 


wo 
-3:; 

•-* 


cedent  to  its  existence,  and  special  laws  are  generally 
enacted  for  the  preservation  of  its  property  and  for 
secrecy  of  business  communications  made  over  its 
lines."^  It  must  transmit  for  all  who  apply;  musit  not 
give  a  preference  to  one  customer  over  another,-  and 
must  forward  messages  in  the  order  in  which  they  are 
received,  except  that  private  dispatches  must  give  way 
to  public  matters,  or  communications  between  public 
officers.^  This  is  expressly  declared  in  the  statutes  of 
Arkansas,  Colorado,  Georgia,  Illinois,  Indiana,  Louis- 
iana, Maine,  Maryland,  Minnesota,  Mississippi,  Ne- 
braska, Nevada,  New  York,  Ohio,  Oregon,  Pennsyl- 
vania, Utah,  Virginia,  Tennessee,  and  Washington. 
The  effect  of  such  statutes  is  to  take  the  busi- 
ness of  conducting  and  managing  a  telegraph  line 
out  of  the  class  of  ordinary  occupations,  and  to  make 
it  a  public  employment,  to  be  carried  on  with  a  view 
to  the  general  benefit,  and  for  the  accommodation  of 
the  community,  and  not  merely  for  private  emolument 
and  advantage.  Under  these  provisions,  an  owner  or 
manager  of  such  a  line  becomes,  to  a  certain  extent, 
a  public  servant  or  agent.* 

The  telegraph  company  may,  however,  refuse  a  mes- 
sage Avhicli,  on  its  face  is  obscene  or  indecent,"'  or  is 
for  a  notoriously"  illegal  purpoise."  The  business  of 
telegraphing  or  the  sending  of  a  telegram  is  not  a  work 
of  necessity  as  a  matter  of  law,  so  as  to  take  a  con- 


1  2Thonip.  Neg.  835;  Primrose  r.  Ti'l. 
Co.,  154  U.  S.  1 ;  US.  O.  Hep.  11)08. 

2  Laws.  Kights,  Horn.  &  I'r.  §  lOnfi; 
West.  U.  Tt'l.  Co.  r.  Ward,  '«  lud.  3"; 
U.  S.  Tel.  Co.  r.  Tel.  Co.,  56  Barb.  46;  Dii- 
Tisr.  Tel.  Co.,  1  Cin.  100;  Smith  v.  Tel. 
Co.,  42  linn.  4,'i4;  Kreedmiin  r.  Tel  Co  ,  32 
Uiin.  4;  West.  V.  Tel.  Co.  v.  Call  I'nb  Co., 
mprn;  rriinroso  v.  Tel.  Co  ,  supra. 

.1  West.  U.  Tel.  Co.  v.  Ward,  23  Ind. 
377;  85  Am.  Uuc.  463. 

496 


*  TJipelow,  C.  ,J.,  in  Ellis  r.  Tel.  Co,,  13 
Allen,  22<>. 

iAliterit  nothing  immoral  or  illegal 
appears  on  its  face  and  tlie  plea  is  tliatit 
was  sent  for  an  illeRal  or  immoral  pur- 
pose (s  in  West.  U.  Tel.  Co.  r.  Kerniison, 
57  Ind.  4!(5,  where  the  message  read: 
"Send  me  four  girls,  on  first  train  lo 
Fran(  esville,  to  tend  fair." 

6  SMith  r.  Tel.  Co.,  84  Ky.  664;  2  S.  W. 
Uep.  (83. 


CH.  XXI.] 


MODERN  AGENCIES. 


§317 


tract  to  send  and  deliver  a  message  out  of  the  Sunday 
laws.  But  if  the  telegram  on  its  face,  or  by  extrinsic 
evidence  is  shown  to  be  in  regard  to  a  work  of  neces- 
sity or  charity,  it  would  not  be  obnoxious  to  those 
laws.* 

§  317.  Telegraph  Company  not  an  Insurer. — Al- 
though there  would  appear  at  first  sight  to  be  no  dif- 
ference in  the  general  nature  of  the  legal  obligation 
between  carrying  a  message  along  a  wire  and  carry- 
ing goods  or  a  package  along  a  route,  the  physical 
agency'  being  dilTerent,  but  the  essential  nature  of  the 
fontract  being  the  same,  yet,  except  in  one  or  two 
early  cases,-  the  American  Courts''  have  refused  to 
hohl  telegraph  companies  to  the  extraordinary  respon- 
sibility of  a  common  carrier  of  goods,  and  to  make 
them  insurers  of  the  correct  transmission  of  messages 
received  by  them.*  In  a  well  considered  cafse  in  Michi- 
gan," it  is  said:  "We  are  all  agreed  that  telegraph  com- 
]Kinies,  in  the  absence  of  any  provision  of  statute  im- 
posing such    liability,   are  not  common  carriere,  and 


1  Kofrors  I-.  Tol.  Co..  TS  liiil.  l»n;  41  Am. 
Ui'p.  rM!<;  (Jnlf  ftc.  K.  Co.  r.  Ia'VV,  C'.t  Tox. 
642;  40  Am.  Hop.  2i;'.». 

V!  .-it'i' I'aiks  c.  Tel,  Co.,  13  Cal.  422;  73 
Am.  Doc.  .iS!i;  McAiiclri'W  r.  TrI.  Ci).,  17 
V.  \\.  3;  Itowcii  V.  T.'l.  Co.,  Allin  Tol. 
Vns.  7 ;  1  Am.  L.  Hoji.  Ii85,  wliero  this  vii'W 
is  taken. 

■'  In  Kn^ilaiul  tlio  ti'lcprajih  is  now 
owni'd  by  tlu'  t-'ovi  rnmi'iit  ami  manantMl 
a>  a  liiaiu'li  of  llw  post  ollicc  (IcparlMii'nt. 
'I'lio  Kiinlish  casos  are  therefore  not  in 
point  hire. 

4  liiiuiey  r.  K.  Co.,  18  Mil.  .S41  ;  HI  Am. 
Dec.  «(I7;  New  York  etc,  Tel.  Co.  r.  Dry- 
h'.rK',  3,-.  I>a,  St.  298;  78  Am,  Dee.  .138; 
.•^liiilils  V.  Tel.  Co.,  11  Am.  I,.  T.  311 ;  Al- 
lens  Tel.  Cas.  7;  West,  C.  Tel,  Co.  i: 
Waril,  23  Inil.  377  ;  K,  Am.  Dee.  4tl2  ;  West, 
r.  Tel.  C).  r.  Carew,  1,'>  Mich.  fi25;  i;ilis 
r.  Tel,  Co.,  13  Allen,  221;;  Initeil    States 

33 


Tel.  Co.  V.  Gildersleeve,  29  Md,  232;  96 
Am.  Dee.  ,')I9;  lialilwin  r.  Tel.  Co.,  45  X. 
Y.  714;  G  Am.  Hep.  K!.");  ,14  Itarb.  nuii;  6 
Ahl).  rr.,N.  S.,  4  ."i;  1  Lans,  12r) ;  Leon- 
ard r.  Tel.  Co.,  41  N,  Y,  544;  1  Am,  Dec. 
44i;;  Tassmore  r.  Tel.  Co.,78  I'a.  St.  2:i8; 
ISryant  r.  Til.  Co.,  1  Daly,  575;  I>e  Hutte 
r.  Tel  Co.,:mllow.  I'r.  403;  1  Daly,  547; 
Wann  r.  Tel.  (  o.,  ,37  Mo.  472;  90  Am.  Dec, 
395;  Wasliin^'lon  etc.  Tel.  Co.  t'.  llobsou. 
15  Gralt.  12J;  liartlett  v.  Tel.  Co.,  62  Me. 
209;  West.  i;.  Tel.  Co.  v.  Fontaine,  58  Ga. 
433;  Camp.  r.  Tel.  Co.,  1  Met.  (Ky.)  164; 
71  Am.  Dec.  401 ;  Aiken  i:  Tel.  Co.,  5  .S.  C. 
3,W;  Kowler  v.  Tel.  Co.,  80  Me.  381 ;  6  Am. 
81.  Ui  p.  211  ;  15  Atl.  Kep.  29;  West.  U.  Tel. 
Co.  r.  .Munforil,  87Tenn,  190;  10  Am,  St. 
Kep.  fi;tO;  10  S.  W.  Hep.  318;  Gillis  v.  Tel. 
Ci>.,fil  Vt.  4ill;  17  Atl.  Hep.  736. 

■i  West.  r.  Tel.  Co.  r.  Carew,  15  Mich. 
525. 

497 


§317 


MODERN  AGENCIES. 


[part  IV.  ' 


c:> 


:^;^ 

:j-: 


tliat  their  obligations  and  liabilities  are  not  to  bo 
measured  by  the  same  rules;  that  thej'  do  not  become 
insurers  against  all  errors  in  the  transmission  or  de- 
livery of  messages,  except  so  far  as  by  their  rules  and 
regulations,  or  by  contract,  or  otheinvise,  they  choose 
to  as'^'nne  that  position,  or  hold  themselves  out  as  such 
^o  iublic,   or   to   those  who   employ   them.     Tlie 

st:  ...  this  State  authorizing  such  companies,  and 

to  some  exLent  prescribing  their  duties  and  liabilities, 
imoose-^"  no  t  r-  'i  liability.  Impartiality  and  good  faith 
are  the  chief,  if  uol  the  only,  obligations  re<iuired  by 
the  statute,  so  far  as  relates  to  the  question  here  in- 
volved. Beyond  these  statute  re(juirenients,  their  obli- 
gations must  be  fixed  by  considerations  growing  out 
of  the  nature  of  the  business  in  which  they  are  en- 
gaged, the  character  of  the  particular  transactions 
which  may  arise  in  the  course  of  their  business,  and 
the  application  of  the  principles  of  justice  and  public 
policy  recognized  alike  by  common  sense  and  the  com- 
mon law.  The  statutes  of  the  other  States  in  reference 
to  this  branch  of  business  are,  in  the  main,  substan- 
tially like  our  own.  Telegraph  companies,  like  com- 
mon carriers,  it  is  true,  exercise  a  public  employment; 
and  the  former  are  bound  to  send  messages  for  thase 
who  apply  and  are  ready  to  pay  the  usual  or  settled 
charges,  as  the  latter  are  bound  to  transport  goods 
for  those  who  seek  their  services,  upon  similar  terms; 
and,  doubtless,  the  same  rule  for  securing  iuipartiality 
would  apply  to  both,  excej)t  as  moditied  by  statute. 
But,  beyond  this,  as  relates  to  the  actual  transporta- 
tion of  goods  in  the  ,one  case  and  the  transmissfon  of 
ideas  in  the  other,  there  is,  in  the  nature  of  things  and 
the  different  means  and  agencies  employed,  but  very 
little  substantial  resemblance;  and  any  analogy  must 
be  more  fanciful  than  real,  and  likely  to  lead  to  error 
498 


CH.  XXI.] 


MODERN  AGENCIES. 


§317 


imd  injustice."       And  the  reasons  for  the  distinction 
are  well  stated  in  a  New  York  case,^  where  Johnson, 
J.,  says:  "I  cannot  refrain  from  observing  here,  that  the 
business  in  which  the  defendant  is  engaged,  of  trans- 
mitting ideas  only  from  one  point  to  another,  by  means 
of  electricity  ojjerating  upon  an  extended  and  insu- 
lated wire,  and  giving  them  expression  at  the  remote 
point  of  delivery  by  certain  mechanical  sounds,  or  by 
marks  or  signs  indented,  which  represent  words  or 
single  letters  of  the  alphabet,  is  so  radically  and  essen- 
tially different,  not  only  in  its  nature  and  character, 
but  in  all  its  methods  and  agencies,  from  the  business 
of  transporting  merchandise  and  material  substances 
from  place  to  place  by  common  carriers,  that  the  pe- 
culiar and  stringent  rules  by  which  the  latter  are  con- 
trolled and  regulated,  can  have  very  little  just  and 
proper  application  to  the  former.     And  all  attempts 
heretofore  made  by  courts  to  subject  the  two  kinds  of 
business  to  the  same  legal  rules  and  liabilities  will,  in 
my  judgment,  sooner  or  later  have  to  be  abandoned  as 
clumsy  and  undiscriminating  efforts  and  contrivances 
to  assimilate  things  which  have  no  natural  relation  or 
affinity  whatever,  and,  a.t  best,  but  a  loose  and  mere 
fanciful    resemblance.       The    bearer    of    written    or 
printed  documents  and  messages  from  one  to  another, 
if  such  was  his  business  or  ■employment,  might  very 
properly  be  called  and  held  a  common  carrier;  while 
it  would  obviously  be  little  short  of  an  absurdity  to 
give  that  designation  or  character  to  the  bearer  of  mere 
verbal  messages,  delivered  to  him  by  mere  signs  of 
speech,   to  be  communicated   in  like  manner.       The 
former  would  have  something  which  is,  or  might  be, 
the  subject  of  property,  capable  of  being  lost,  stolen, 


I  Breese  v.  Tel.  Co.,  46  Barb.  274;  31 
Mow.  Pr.  816. 


499 


f 


^^^ 


>  1 


<^2 


■»: 


§317 


MODERN  AGENCIES. 


[part  IV, 


and  wrongfully  appropriated;  while  the  latter  would 
have  nothing  in  the  nature  of  property  which  could  be 
converted  or  destroyed,  or  form  the  subject  of  larceny, 
or  of  tortious  caption  and  a])propriation,  even  by  the 
'king's  onemies.' "  And  in  a  very  recent  case  in  the 
Supreme  Court  of  the  United  States,  Mr.  Justice  Gray, 
eays:^  "Telegraph  corapanies  resemble  railroad  com- 
panies and  other  common  carriers,  in  that  they  are 
instruments  of  commerce,  and  in  that  they  exercise  a 
public  employment,  and  are  therefore  bound  to  serve 
all  customers  alike,  without  discrimination.  They 
have,  doubtless,  a  duty  to  the  public  to  receive,  to  the 
extent  of  their  capacity,  all  messages  clearly  and  in- 
telligibly written,  and  to  transmit  Ihcm  u]>()n  reason- 
able terms.  Uut  they  are  not  common  carriers.  ThtMr 
duties  are  dilTerent,  and  are  pei'formed  in  dilTci-ent 
ways;  and  they  are  not  subject  to  the  same  liiibililies. 
The  rule  of  tlie  common  law  bv  which  common  carriers 
of  goods  are  held  liable  for  loss  or  injury  by  any  cause 
whatever,  except  the  act  of  God  or  of  public  enemies, 
does  not  extend  even  to  warehousemen  or  wharlingers, 
or  to  any  other  class  of  bailees,  except  innkeepers,  who, 
like  carriers,  have  peculiar  opportunities  for  embezzl- 
ing the  goods  or  for  collusion  with  thieves.  The  car- 
rier has  the  actual  and  manual  ])ossession  of  the  goods. 
The  identity  of  the  goods  which  he  receives,  with  those 
which  he  delivers,  can  hardly  be  mistaken.  Their 
value  can  be  easilv  estimated,  and  mav  be  ascertained 
by  inquiry  of  the  consignor,  and  the  carrier's  compen- 
sation fixed  accordingly;  and  his  liability  in  damages 
is  measured  by  the  value  of  the  goods.  But  telegraph 
companies  are  not  bailees,  in  any  sense.  They  are  in- 
trusted with  nothing  but  an  order  or  mt^sage,  which 
is  not  to  be  carried  in  the  form  or  characters  in  which 

1  Primrose  v.  Tel.  Co.,  154  U.  S.  1;  14 
S.  C.  Rep.  loyi. 

500 


J 


OH.  XXI.J 


MODERN  AGENCIES. 


§317 


it  is  received,  but  is  to  be  translated  and  transmitted 
through  different  symbols,  by  means  of  electricity,  and 
is  peculiarly  liable  to  mistakes.  The  message  cannot 
be  the  subject  of  embezzlement.  It  is  of  no  intrinsic 
value.  Its  importiince  cannot  be  estimated,  except  by 
the  sender,  and  often  cannot  be  disclosed  by  him  with- 
out danger  of  defeating  his  purpose.  It  may  be  wholly 
valueless,  if  not  forwarded  immediately;  and  the 
measure  of  damages,  for  a  failure  to  transmit  or  de- 
liver it,  has  no  relation  to  any  value  of  the  message 
itself,  except  as  such  value  may  be  disclosed  by  the 
message,  or  be  agreed  between  the  sender  and  the  com- 
pany." 

The  telegraph  company  is  required,  however,  to  use 
good  apparatus  and  instruments,  and  reasonable  skill 
and  a  high  degree  of  care  and  diligence  in  their  opera- 
tion, and  for  the  want  of  these  it  will  be  liable  to  per- 
sons injured  thereby^ 

It  must  forward  a  message  received,  within  a  reason- 
able time,^  and  is  responsible  for  its  agent's  negligence 
in  not  knowing  the  existence  of  places  where  its  offices 
are  located,''  or  in  attempting  to  send  a  message  which 
he  knows,  on  account  of  atmospheric  disturbances  can- 
not be  correctly  ti'ansmitted,*  or  for  negligently  deliv- 
ering forged  dispatches,-'"'  and  for  the  frauds  of  its 
agents  in  sending  false  and  fraudulent  dispatches.*' 


1  Cases  cited  in  last  note :  West.  U. 
Tel.  Co.  r.  Carew,  !.■>  Mich.  ."25;  Abruham 
f.  Tfl.  Co.,  2.1  Fed.  Kop.  31,-);  Fowler  r. 
Tel.  Co.,  80  Me.  .181;  G  Am.  .St.  Kep.  211; 
15  Atl.  Upp.  29;  Wrwt.  U.  Tel.  Co.  v. 
Cook,  61  Fed.  Uep.  fi24.  Other  phrases 
descriptive  of  what  the  law  requires  in 
this  case  are  to  be  lotind  in  the  reports, 
but  the}' have  substuntiul'y  the  mean- 
inK  above.  See  Kllis  v.  Tel.  Co.,  l.S  Allen, 
22G;  I'assmore  r.  Tel.  Co.,  78  Pa.  .St.  238; 
15al<hvin  r.Tel.  Co., 45  Barb.  505;  45  N.  Y. 
744;(>  Am.  Uep.  IfiS. 

2  IJtit  at  small  ofilces  it  is  not  bound  to 
have  an  op'Tator  constantly  present  to 
receive.    Bebm  v.  Tel.  Co.,  8  Biss.  131. 


The  reasonableness  of  a  regulation  as 
to  the  time  of  closing  oflBces  is  for  the 
jury.    Urown  v.  Tel.  Co.,  21  Pac.  Rep.  991. 

^  West.  U.  Tel.  Co.  v,  Buchanan,  35 
Ind.  420 ;  9  Am.  Kep.  744. 

4  West.  U.  Tel.  Co.  v.  Cohen,  73  Ga. 
522. 

«  Strause  r.Tel.  Co.,  8  Biss.  104;  El- 
wood  r.  West.  U.  Tel.  Co.,  45  X.  Y.  549;  6 
Am.  Uep.  140.  Aliter,  of  course,  where 
there  is  no  want  of  care  on  the  part  of 
its  agent.  West.  U.  Tel.  Co.  v.  Meyer, 
61  Ala.  158;  .32  Am.  Rep.  1. 

B  McCord  r.Tel.  Co.,  39  Minn.  181;  31 
N.  W.  Rep.  315;  Brown  r.  Tel.  Co.,  6 
Cent.  L.  J.  265  (Cal.). 

501 


fr 


§318 


MODERN  AGENCIES, 


[part  IV 


I    I 


-3 


It  must  deliver  its  messages  witliin  a  reasonable 
time,*  and  this  whether  it  is  notified  of  their  special  im- 
portance or  not.2  It  muist  make  a  reasonable  effort  to 
find  the  addressee,  and  this  is  not  done  by  lookiiij;  for 
him  at  his  place  of  business  only.'^  A  delivers-  to  a 
man's  wlTe^  or  to  the  clerk  of  a  hotel  at  which  tho  ad- 
dressee is  a  guest  is,  however,  sufficient,'''  and  where  a 
telegram  is  sent  to  one  person  in  care  of  another,  it  is 
enough  to  ileliver  it  to  the  latter  without  an  effort  lo  <1(^- 
liver  to  the  former;"  and  his  refusal  to  receive  it,  ix'- 
leases  the  company  from  liability.^ 

§  318.     Action  May  be  Brought  by  Addressee.— 

In  England,  except  where  the  sender  is  the  agent  of 
the  addressee,  the  latter  cannot  sue  the  company  cither 
for  a  breach  of  its  contract  to  transmit  the  messaue 
properly,  or  for  its  neglect  independent  of  contract 
causing  him  injury'.®  In  the  United  States,  on  the 
other  hand,  either  sender  or  addressee  may  sue."  This 
conclusion  is  arrived  at  in  our  courts  in  some  cases 


1  Julian  f.  Tel.  Co.,  98  Ind.  .S27;  Wpst. 
V.  Tel.  Co.  V.  Fatman,  73  Ga.  28,5;  .54  Am. 
Kep.  877;  West.  U.  Tel.  Co.  r.  Clark,  25  S. 
W.  Rep.  990  (Tex.) ;  West.  U.  Tel.  Co.  v. 
Linn,  28  .S.  W.  Uep.  234  (Tex.). 

2  Pope  V.  Tel.  Co.,  14  111.  (App.)  531. 
And  it  is  no  defense  that  the  sender 
might  have  sent  it  sooner.    Id. 

3  I'opo  V.Tel.  Co.,  9  111.  (App.)  283; 
West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507; 
10  Am.  St.  Rep.  772 ;  9  S.  W.  Kep.  598. 

4  West.  U.  Tel.  Co.  v.  Trissal,  98  Ind. 
566. 

s  Given  v.  Tel.  Co.,  24  Fed.  Rep.  119. 

6  West.  V.  Tel.  Co.  v.  Terrell,  .0  S.  W. 
Bep.  70  (Tex.). 

7  West.  U.  Tel.  Co.  v.  Young,  77  Tex. 
245 ;  13  S.  W.  Rep.  398 ;  West.  U.  Tel.  Co. 
V.  Thompson,  31  S.  W.  Rep.  318  (Tex.). 

8  Dickson  v.  Tel.  Co.,  2  C.  1'.  Div.  62;  3 

502 


C.  p.  Div.  1;  Plajford  v.  Tel.  Co.,  L.  R. 
4Q.  15.  706;  10  B.  *  S.  759. 

»  New  York  etc.  Tel.  Co.  t'.  Drybnrg, 
35  Pa.  ."^t.  298;  78  Am.  Dec. 338;  Klwood  v. 
Tel.  Co.,  45  N.  Y.  549;  6  Am.  Rep.  140; 
Wolfskihl  f.  Tel.  Co.,  46  IFtin.  542 ;  Hose 
V.  Tel.  Co.,  6  Uobt.  .305;  West.  U.  Tol.  Co. 
V.  Carew,  15  Mich.  525;  Aiken  v.  Tol.  Co., 
B  S.  C.  .3,58;  West.  U.  Tel.  Co.  v.  Hope,  U 
111.  (App.)  280 ;  Harris  v.  Tel.  Co., 9  I'hila. 
88 ;  West.  U.  Tel.  Co.  v.  Fenton,62  Iiid.  1 ; 
Markel  v.  Tel.  Co.,  19  Mo.  (App.)  800; 
West.  II.  Tel.  Co.  v.  Allen,  66  Miss.  549; 
6  South.  Rep.  465;  West.  U.  Tel.  Co.  r. 
McKibben,  114  Ind.  511;  14  N.  E.  Rep. 
894;  Iladleyr.  Tel.Co.,115  Ind.  191;  15 
N.  E.  Rep.  846;  Ilerron  v.  Tel.  Co.,  57  N. 
W.  Rep.  696  (la.) ;  Mcntzer  r.  Tel.  Co.,  (',■> 
N.  W.  Rep.  1  (la.) ;  West.  U.  Tel.  Co.  r. 
Uichmau,8  Atl.Rep.  171  (Pa.).  But  under 


CH.  XXI.] 


modf:un  agencies. 


§319 


through  the  application  of  tho  rule  that  where  A  makes 
a  contract  for  the  benefit  of  B,  the  latter  may  sue 
upon  it,  as  being  the  real  party  in  interest;^  in  others 
by  regarding  the  -ompany  as  the  agent  of  both  the 
sender  and  the  receiver;-  in  others  by  holding  the  com- 
in\u\  as  a  public  agent  to  be  under  a  duty  to  both 
sender  and  receiver,  to  carry  the  message,  and  to  do 
fio  with  fidelity  and  care.^ 

§  319.     Limitation  of  Liability  by  Contract.— By 

an  express  contract  with  the  sender  (or  by  a  notice 
assented  to  by  him  either  expressly  or  impliedly),  a 
telegraph  company  may  limit  its  liability  to  some  ex- 
tent.^    But  for  reasons  of  public  policy  similar  to  those 


u  u. 


a  stattite  imposing  a  penalty  upon  tele- 
graph companies  for  failure  to  transmit 
a  luessape,  to  bo  recovered  by  the  per- 
son whose  (lispntcli  is  postponed  or  neg- 
lected, the  sender  is  the  person  to  sue: 
West.  U.  Tel.  Co.  f.  J'endleton,  95  Ind. 
12;  4ft  Am.  Kep.  GO'i. 

1  Laws.  Contr.,  §  113.  West  v.  Tel. 
Co.,  39   Kits.  93;    7    Am.    St.   Uep.  530; 

17  I'ac.  Uep.  807;  West.  U.Tel.  Co.  v. 
lx)ni,'will,21  I'ac.  Uep.  .339;  Wadsworth  v. 
Tel.  Co.,  SG  Tenn.  6U6;  G  Am.  St.  Uep.  864 ; 
8  S.  W.  Uep.  574. 

2  Xcw  York  etc.  Tel.  Co.  v.  Drybnrg, 
35  Pa.  St.  29S ;  7ft  Am.   Dec.  3.38. 

3  Wadsworth  v.  Ttd.  Co., supra;  Young 
f.  Tel.  Co.,  107  X.  V.  870;  11  S.  C.  Kep. 
1044;  Klwoodr.  Tel.  Co.,  45  X.  Y.  549; 
West.  VJ.  Tel.  Co.  r.  Dubois,  128  111.  248; 
15  Am.  St.  Uep.  109;  21  X.  IC.  Ui-p.  4. 

4  Young  V.  Tel.  Co.,  65  X.  Y.  163  ;  Hreese 
V.  Tel.  Co.,  48  N.  \.  132  ;  8  Am.  Uep.  62fi ; 
Do  Uutto  V.  Tel.  Co.,  1  Daly,  547  ;  Sweet- 
land  r.  Tel.  Co.,  27  Iowa,  433;  1  .\m.  Uep. 
28,');  Manvillov.  Tel.  Co.,  37  Iowa,  214; 

18  Am.  Uep.  8;  West.  U.  Tel.  Co.  v.  Bu- 
chanan, 35  Inil.  429;  9  Am.  Uep.  744; 
West.  U.  Tel.  Co.  f.  Tyler,  74  111.  68;  24 
Am.  Uep.  279;  60  III.  421 ;  I'assmore  v. 
Tel.  Co.,  781'a.  St.  238;  9  Thila.  90;  Har- 
ris u.  Tel.  (^o.,  9  Phila.  88;  Wolf  v.  Tel. 
Co.,  62  Pa.  St.  83;  1  Am.  Rep.  387;  West. 


U.  Tel.  Co.  r.  Carcw,  15  Mich.  625;  Wann 
r.  Tel.  Co.,  37  Mo.  473;  90  Am.  Dec.  39S; 
U.  S.  Tel.  Co.  V.  Gildersleeve,  29 Md.  232; 
96  Am.  Dec.  519;  Camp  ;•.  Tel.  Co.,  1  Met 
(Ky.)  164;  71  Am.  Dec.  461;  West.  U.  Tel. 
Co.  !•.  Graham,  1  Col.  230;  9  Am.  Kep.  136; 
Kllis  V.  Tel.  Co.,  13  Allen,  226 ;  Uedpathr. 
Tel.  Co.,  112  Mass.  71  ;  17  Am.  Uep.  69; 
(irinnell  f.  Tel.  Co.,  113  Mass.  299  ;  18  Am. 
Uep.  4H5;  Pepper  v.  Tel.  Co.,  87  Tenn. 
654;  10  Am.  St.  Kep.  699;  11  S.  W.  Kep. 
783.  It  cannot  however  by  contract 
evade  a  statutory  liability,  penal  in  its 
nature,  for  failure  to  trans. tji  ,i  mess.ige 
correctly.  West.  U.  Tel.  .  .  Adams, 
87  Ind.  598;  44  Am.  Kep.  776;  West.  U. 
Tel.  Co.  r.  Uuchanan,  33  Ind.  429;  9  .\ra. 
Kep.  744.  It  is  laid  down  in  a  recent  case 
in  Georgia  that  the  statute  imposing 
upon  telegraph  companies  a  penalty  for 
default  in  the  transmission  or  delivery  of 
messages  is  based  upon  public  policy, 
and  has  for  its  object  tho  quickening  ot 
the  diligence  of  these  comi)anles  in  the 
performance  ot  their  duties  to  the  public. 
With  this  object  in  view,  it  seeks  to  en- 
courage both  the  sender  and  the  sendee 
ot  messages  to  sue  for  the  penalty,  by 
offering  to  the  one  who  shall  Urstsuo  the 
whole  amount  ot  the  recovery.  For  a 
company  to  protect  itself  against  pay- 
ment of  the  penalty  by  a  contract  with 

503 


^m 


§319 


MODERN  AGENCIES. 


[PAKT  IV. 


'    I 


which  refuse  lo  permit  a  coninion  carrier  to  escape 
liability,  by  a  contract  with  the  owner  of  the  j;oo(ls, 
for  the  consequence  of  his  own  ue<j;lecl,  or  that  of  hi« 
aj^ents  or  servants,  a  telegraph  company,  iiotwitlistand- 
in<^  a  special  contract  limitiujj:  its  liability,  will  still 
be  liable  for  mistakes  happening  in  conscfpHMicc  of 
its  own  fault,  such  as  want  of  ordinary  skill  on  the 
part  of  its  operatives,  or  the  use  of  defective  instru- 
ments, but  will  not  be  liable  for  mistakes  occasioned 
by  causes  beyond  its  control,  such  as  atmospheric 
chan};es,  or  the  va|;aries  of  electricity,  provided  these 
mistakes  could  not  have  been  avoi<l(Ml  by  the  exercise 
of  ordinary  care  and  skill  on  the  part  of  the  operatinj;' 
aji'ents  of  the  company.^ 


thr  stMulcr,  rondo  nt  the  tiinc  of  rccriviiiK 
from  liiiii  the  inessii^'<r  to  h<' ^  nt.thiitit 
will  iml  bo  liable  uiili'>.s  ii  claim  for  llie 
penalty  IS  pnsenti  <l  to  it  or  ils  a^reiits, 
in  writing,  within  00  days  after  the  mes- 
saRO  is  tiled  for  transmission,  woild  be 
contrary  to  the  policy  of  the  hTrislatiiru 
in  cnaetinK  tbe  statute,  ami  all  siicli  con- 
tracts are  void  and  of  no  effect.  Says 
Lum|ikiii,  J.:  "'I'he  mere  fact  tliat  u 
customer  voluntarily  uses  such  a  blank 
without  objection  is  of  no  conseiitieuee. 
As  he  eoiild  not  be  coiiii)illid  to  use  it, 
his  so  doing  is  really  without  consiilera- 
tion,  so  fur  as  he  is  concerned,  and  is  not 
binding  tipon  him.  IJesides,  this  is  not  a 
matter  for  contracttial  ncflot  ations  be- 
tween the  parties.  Ill  Telegraph  Co.  r. 
Taylor,  81  (Ja.  408,  1  S.  K.  H!tl!,  it  was  said 
that  'the  penalty  is  for  tin-  wrongful,  vio- 
lation of  a  public  duty,  and  neither  in 
whole  nor  in  part  for  a  mere  breach  of 
contract ;'  mid  this  conclusion  is  borne 
out  by  the  reasoning  of  Chief  Justice 
Bleckliy  on  pagis  4.3,  411,  84  (ia.,  and 
page  H'Mi,  US.  K.  Hep.  and  the  aiiihorities 
there  cited.  We  have  not  the  slightest 
idea  tliat  in  enacting  the  statute  now 
under  consideration  the  general  assem- 
bly ever  supposed  or  intended  that  a 
telegraph  company  would  be  able  to 
protect  Itself  against  the  payment  of  ii 
penalty  in  the  luuuuer  here  attempted. 

504 


On  the  contrary,  we  feel  certain  that  to 
allow  tills  to  be  done  would  lu'  violative 
of  the  legi-latjve  policy,  and,  in  a  large 
measure,  would  defeat  the  jMirposi'  for 
Wliieh  the  statute  was  passed."  M.iiliis 
c.  \Ve>t.  i;.  Tel.Co.,  21  S.  K  Uep.  501; 
Walker  c.  West.  C.  rul.  Co.,  Id.  rxi.j. 

1  l-dwierr.  West.  V.  Tel.  Co.,  W(  Me. 
381;  ij  Am.  .St.  Uep.  211;  15  .\tl.  Kep.  2'J; 
KIlis  (•  Am.  Tel.  Co.,  13  Allen,  2-'i>;  Uub- 
bard  r.  West.  U.  Tel.  Co.,  3;1  Wis.  fi.M;  14 
Am.  Uep.  77.);  West.  U.  Tel.  Co.  f.  Fon- 
taine, ,')8  (Ja.  43,!;  Wann  r.  Til.  Co.,  il7 
Mo  47.';  !W  Am.  Dec.  Z'Mt;  Dorgan r.  Tel. 
Co.,1  Am.  L.  T.  4(;G;  liartlett  v.  Tel.  Co., 
f)2  Me. 'JO'.!;  K;  Am.  Uep.  437;  Tel.  Co.  v. 
(iriswold.ia  Ohio  St.  .HOI;  41  Am.  Uep. 
f)Oi);  While  c.  Tel.  Co.,  14  Fed.  Uep.  710; 
Ay.r  ,:  W.  V.  Tel.  Co.,  7'.)  .Me.  4;i.! ;  1  Am. 
St.  Uep.  3,'>.i;  10  Atl.  Uep.  4'.»5;  Smith  v. 
T.'l.  Co.,81  Ky.  1(11;  4  Am.  St.  Uep.  lifi; 
Ilarkness  r.  Tel.  Co.,  7-1  Iowa,  l'.*';  5  Am. 
St.  Uep.  r.72;  M  N'.  \V.  Uep.  81;  West.  U. 
Tel.  Co.  V.  Crall,  38  Kan.  07'.t ;  5  Am. St.  Uep. 
7a'«;  17  Cat.  Ueii.  3n'.t;  Sweetland  v.  Tel. 
Co.,  27  Iowa,  4,i3;  1  Am.  Uep.  28.5;  Man- 
villeu.  Tel.  Co.,  37  Iowa,  211;  18  Am. 
Kep.  8;  I'assmore  r.  Tel.  Co.,  7S  I'a.  St. 
238;  >t  I'hila.  88;  Candee  v.  Tel.  Co.,  34 
Wis.  471 ;  17  Am.  Uep.  4!)3;  West.  i:.  Tel. 
Co.  V.  Tyler,  71  III.  1G8;  n  Am.  Uep.  27;»; 
60  III.  421 ;  Aiken  v.  Tel.  Co.,  5  S.  (;.  :«8; 
West.  U.  Tel.  Co.  v.  Graham,  1  Col.  230; 


cir.  XXI.] 


MODERN  AGENCIES. 


S  320 


I  that  to 
violative 
I  u  lart;(! 
rpoM^  for 

'      >?.illllS 

Ucp.  S64; 

|.  Btin. 
HO  yu\ 

;  Iliib- 

rir>s;  u 

I'.  I'oii- 

Co.,  37 

c.  Ti'l. 

I.  Co., 

Co.  r. 

III.   Ilcp. 

p.  710; 

1  Am. 

nitli  V. 

p.    Viii; 

Am. 

t.  U. 

St.  Ilcp, 

I'.  T<;1. 

;   Man- 

18  Am. 

I'a.  St. 

Ci).,  Hi 

I  .  T.'l. 

•p.  27'.t; 

(;.  -.^M; 

ol.  230; 


It  is  genorally  hold  that  whore  tho  sonilor  of  a  mes- 
sago  usos,  without  d■.s^5ont,  a  blauli  furnished  by  the 
t'onipauy,  ou  whicii  to  w'ito  it,  he  is  presumed  to  as- 
sent to  tho  eonditious  which  are  printeil  ou  it.s  face/ 
and  that  lu'  will  not  be  i)erinitted  to  show  that  he 
neither  read,  understood,  or  assented  to  them.'-  But 
if  tho  rojiulatlons  of  the  company  which  seek  to  limit 
its  liability  are  not  printed  on  the  paper  which  ho 
uses,  there  must  be  evidence  of  Ins  knowledge  of  them 
in  order  to  bind  him.'^ 

The  receiver  is  not  bound  by  the  notices  on  the  blank 
which  the  sender  uses,  though  the  latter  may  be.* 

§  320.        Condition.^     roiitaintMl    in     Telejyraph 
Blanks. — A  couditiou  that  if  the  message  is  not  re- 


9  Am.    Ui'p.  1315;  West.    V.   Tel.    Co.  f. 

Slioit,  0.)  Ark.  iAi;  H  S.  W.  lU'P'  640; 
Wi'st.  I'liioii  Tol.  Co.  V.  Hiichaiian,  'M 
Imi.  rs<;  !)  Am.  Hop.  741;  Trui!  r.  Trl. 
Co.,l'.o  .^le.  19;  U  Am.  U.p.  IBG;  IJri'tsf 
V.  Tfl.  Co.,  48  N.  V.  1.H2;  8  Am.  Ili'p.  Mr, ; 
UiMlpath  f.  Tfl.  Co.,  Hi  Mass.  71 ;  17  Am. 
Kcp.  i;j;  (jiriiiuuU  I'.  Tel.  Co.,  113  Muss. 
20tl;  IS  Am.  Ht'p.  4R5;  West.  U.  Tfl.  Co. 
f.  Way,  83  Ala.  642;  4  South.  K.'p.  844; 
Bherrill  r.  Ti'l.Co.,21  S.  K.  Ufp.42;)  (N  C). 
A  comlitioii  oxL'mptint;  tlu!  company 
from  liahility  for  errors,  di'lays,  or  omis- 
sions "ari--iii)?  from  wliatt'ver  caiist;"  is 
unrcasoiiahlt!.  Fowlrr  c.  Tel.  Co.,  80 
Me.  381 ;  6  Am.  St.  Uep.  211 ;  15  Atl.  Uep. 
29. 

1  West.  V.  Tel.  Co.  c.  Carcw,  15  Mich. 
82S;  Do  Uiitte  i\  Tel.  Co.,  1  Daly,  54T  ;  30 
Uow.  I'r.  40.!:  WouiaeU  v.  Tel.  Co.,  68 
Tex.  lT!i;  4t  Am.  Uep.  i;i4;  West.  U.  Tel. 
Co.  r  Dumleld,  11  Col.  .S.tj;  West.  U.  Tel. 
Co.  V.  Buchanuu,  35  lud.  429;  9  Am.  Uep. 
744. 

2  Grinnell  v.  Tel.  Co.,  113  Mass.  299;  18 
Am.  Uep.  4S5;  Keilpath  v.  Tel.  Co.,  112 
Mass.  71;  17  Am.  Uep.  (iO;  Breese  i-.  Tel. 
Co.,  48  N.  V.  1.T2;  45  Barb.  174;  8  Am. 
Uep.  520 ;  Young  v.  Tcl.  (;o.,  C5  N.  V.  103  ; 
Wolf  f.  Tel.  Co.,  62  Pa.  St.  83;  1  Am. 
Uep.  S'S";  West.  U.  Tel.  Co.  i:  Buchanan, 
35  Iiiil.  4J.t;9  Am.  Uep.  714;  tr.  S.  Tel.  Co. 
V.   UUderslecvu,    29  Md.    222;    9(i   Am. 


Dec.  679.  In  Illinois,  by  analogy 
to  the  rule  in  that  state  as  to 
terms  111  bill-i  of  ladiiii,'  given  by  carriers 
(sec;  ante  §  14S),  the  above  is  only 
eviileneo  of  assent  but  not  couclusivo. 
Tyh'rr.  Tel.  Co.,  00  111.  421. 

.1  Tliomp.  Klectr.  212  (criticising  tho 
Maryland  cases  of  Hiiiney  v.  Tel.  Co., 
18  Md.3ll;81  \m.  Dec.  0  j7  and  U.S.Tel. 
Co.  r.  <iildersleeve,  29  .Md.  232;  00  Am. 
Dec.  5:;n)  ;  De  Uutte  c  Tel.  Co.,  1  Daly, 
547;  30  How.  I'r.  40;;  lieaMey  r.Tel.  Co., 
39  Fed.  Uep.  181 ;  I'earsall  i:  Tel.  Co., 
44  llun.  5;!2;20N.  K.  Uep.  534;  West. 
U.  Tel.  Co.  1-.  0'Kecfe,29.S.  W.  Uep.  1137; 
(Te.x  ).  But  ,,sin  the  case  of  tho  common 
carrier  thereasonabb!  refjulatioiis  by  a 
telegraph  company  for  tho  inanaiiement 
of  its  business  are  binding  en  its  patrons, 
though  they  have  no  knowledge  of  their 
adoption.  West.  U.  Tel.  Co.  v.  .McMillan, 
SO  S.  W.  Uep.  2:m  (Tex.). 

4  New  York  etc.  11.  Co.  t'.  Dryburg,  35 
Pa.  St.  298;  78  Am.  Dec.  338;  West.  U. 
Tel.  Co.  V.  Fenton,  52  lud.  1;  We>t.  U. 
T.d.  Co.  I'.  Uichmnn,  8  Atl.  Uej..  171 
(I'a.) ;  I.agrangc  v.  Tel.  Co.,  25  l.a.  Ann. 
38!;  U.irrls  y.  Tel.  Co.  9  PhiUi.  88.  But 
see  West.  U.Tel.  Co.  v.  McKibb  n,  114 
Ind.  51.1;  14  X.  K.  Rep.  894;  FIndlay  r. 
Tel.  Co.,  01  Fed.  Uep.  4"i9;  Manier  v,  TeL 
Co.,  29  S.  W.  Kep.  732  (Tenn.). 

505 


§320 


MODERN  AGENCIES. 


[part  IV. 


c:> 


X3 


peated  —  for  which  an  extra  charge  is  asked  —  the 
company  shall  not  be  liable  beyond  a  certain 
sum,  protects  the  company  whenever  the  mis- 
take is  not  the  result  of  the  negligence  of  the 
company  or  its  agents  or  servants.^  This  is 
laid  down  in  a  number  of  cases,  but  as  has 
been  pointed  out  in  a  recent  case  in  the  Supreme  Court 
of  the  United  St«ates,-  such  a  construction  of  conditions 
of  this  character  would  seem  to  be  meaningless,  unless 
it  is  assumed  that  telegraph  companies  are  subject  to 
the  liability  of  common  carriers,  which  the  courts  ad- 
mit they  are  not;  otherA\ise  it  allows  to  the  stipulation 
no  effect  whatever;  for,  if  tluy  are  not  common  car- 
riers, they  would  not,  even  if  there  were  no  ex])ress 
stipulation,  be  liable  for  unavoidable  mistakes,  due  to 
causes  over  which  they  had  no  control.  The  most  ef- 
fect such  an  agreement  can  have,  is  to  shift  the  burden 
of  proof,  and  if  the  party  has  not  required  the  mes- 
sage to  be  repeated  to  prevent  any  recovery  upon  ])roof 
only  that  the  message  did  not  reach  its  destination,^ 
or  that  there  was  an  error  in  the  dispatch  Avhen  it  was 
receivetl  by  the  addressee.*  In  some  courts,  however, 
an  error  in  transmitting  being  provcMl,  the  onus  is 


1  Spragne  v.  Tel.  Co.,  6  Daly,  200;  67  N. 
Y.  690;  llaldwin  v.  Tel.  Co.,  45  I5iu:>.  505; 
1  Lans.  126 ;  6  Abb.  Pr.,  N.  S.,  195 ;  4J  N. Y. 
744;  6  Am.  Rep.  165;  Hryant  r.  Tel.  Co.,  1 
Daly,  675;  New  York  etc.  Tel.  Co.  r.  Dry- 
burg,  35  Pa.  St.  2>.t8;  78  Aas.  Dec.  .3.^8;  3 
Phila.  408;  Dorgan  t'.  Tel.  Co.,  1  Am.  L. 
T.  406 ;  True  v.  Tel.  Co.,  60  Me.  9 ;  11  Am. 
Uej).  156;  «inney  v.  Te).  Co.,  18  Md.  341; 
West.  U.  Tel  Co.  v.  Graham,  1  Col.  230;  9 
Am.  Rep.  136;  Manville  v.  Tel.  Oo.  37 
Iowa  214;  18  Am.  Kep.  8;  Waiin  v.  Tel. 
Co.,  37  Mo.  472 ;  iK)  Am.  Dec.  .S'.t5 ;  i'egram 
V.  Tel.  (;o.,  97  X.  C.  67;  West.  U.  Tel.  Co. 
D.Buchanan,. 35  Ind.  429;  9  Am.  Kep.  744; 
Tbompaon  r.  Tel.  Co.,  64   Wis.  S31;  64 

506 


Am.  Rep.  644;  V,"cst.  U.  Tel.  Co.  v.  Har- 
ris, 19111.  -^rp.  347;  Schwartz  r.Tol.  Co., 
18  Uuu.  157;  Hecker  v.  Tel  Co.,  11  Neb. 
87 ;  3S  Am.  Rep.  .S.'ifi ;  WeHt.  U.  Tel.  Co.  v. 
Sholter,  18  Cent.  I..  .1.  '230  ((in.) 

2  Primrose  i:  Tel.  Co.,  154  V.  S.  1 ;  14  S. 
r.  Rep.  1098. 

»  Kiley  r.  Tel.  Co.,  109  N.  Y.  211 ;  16  N. 
K.  Rep. 75;  Clement  r.  Tel.  ('o.,  137  .Mass. 
4G3. 

4  lieckcr  r.  Tel.  Co.,  11  Neb.  H7;  38  Am. 
Rep.  316;  7  N.  W.  Hep  Si'H;  Jlart  v.  Tel. 
Co.,66Cal.  579;  56  Am.  Hep.  110;  6  Vac. 
Rep.  l.<7i  Sweetlandi'.  Tl'1.Co.,2"  la.  433; 
Womack  v.  Tel.  Co.,  58  Tex.  176;  44  Am. 
Rep.  614. 


k 


nis  IS 


riar- 

Id.  Co., 

11   Neb. 

el.  Co.  V. 

V  I ;  14  8. 

n  ;  Ifi  N. 
i:i7  .Mass. 

; ;  .W  Am. 

it  V.  Tel. 

);  6  I'iic. 

'  In.4;).l; 

44  Am. 


CII.  XXI.] 


MODERN  AGENCIE8. 


320 


upon  the  company  of  pnoviug  that  it  arose  from  a  cause 
beyond  its  control.* 

But  negligence  of  the  telegraph  company  or  its 
agents  being  shown,  such  a  condition,  it  is  laid  down 
in  a  great  numiber  of  casee,  is  no  defense.-  As  well 
put  in  a  Georgia  case:''  "Any  rule  or  regulation  of  the 
company  which  seeks  to  relieve  it  from  performing  its 
duty  belonging  to  the  employment,  with  integrity, 
skill  and  diligence,  contravenes  public  policy  as  well 
as  the  laAV,  and  under  it,  the  party  at  fault  cannot 
seek  refuge.  If  it  becomes  necessary  for  the  company, 
in  transmitting  messages  with  integrity,  skill  and  dili- 
gence to  secure  accuracy,  to  have  said  messages  re- 
peated, then  the  law  devolves  upon  them  that  duty 
to  meet  its  requirements."  In  Gillis  v.  Western  Union 
Tel.  Co.,*  it  is  said:  "The  question  is,  whether  it  is  just 
and  reasonable  and  consistent  with  public  policy,  that 
telegrai)h  companies  should  be  allowed  to  stipulate  for 
immunity  from  liability  for  their  own  and  their  ser- 
vants' negligence.  The  Supreme  Court  of  the  United 
States  holds  that  common  carriers  cannot  lawfully 
stipulate  for  exemption  from  liability  when  such 
exemption  is  not  just  and  reasonable  in  the  eye  of  the 
law;  that  it  is  not  just  and  reasonable  in  the  eye  of 


1  West.  U.  Tel.  Co.  r.  Tyler,  60  111.  421 ; 
14  Am.  Rep.  38;  74ni.  K.H;  24  Am.  iJep. 
279;  Hartlett  i-.  Tel.  Co.,  62  Mc.  200;  16 
Am.  Uep.  437.  This  view  ia  approved  in 
Thorn  p  on  Klectr.  §  2.S2. 

2  West.  U.  Tel.  Co.  r.  Blanchard,  68 
Ga.  2'J'.t;  45  Am.  Uep.  480;  West.  i:.  Tel. 
Co.  V.  (iraham,  1  Colo.  2;iO;9  Am.  Uep. 
IHO;  Uiiiney  v.  TVl.  Co.,  18  MJ.  SH;  81 
Am.  Dec.  GOT;  Sweetland  v.  Tel.  Co.  27 
la.  4S3;  Marr  v.  Tel.  Co.,  85  Tonn.  52'.);  3 
S.  W.  Uep.  496;  Pepper  v.  Tel.  Co.  87 
Tenn.  554;  11  S.  W.  Uep.  783;  Thompson 
r.  Tel.  Co.,  64  Wis.  631:  25  N.  W.  Uep. 
789 ;  West.  U.  Tel.  Co.  v.  Tyler,  74  HI.  168 ; 
Ayer  v.  Tel.  Co.,  79  Me.  49.S;  1  Am.  St. 
Uep.   363;   10   Atl.    Uep.    495;   Tyler   v. 


Tel.  Co.,  60  111.  421;  U  Am.  Rep.  38; 
West.  U.  Tel.  Co.  r.  Tyler,  74  111.  IBS;  24 
Am.  Uep.  2T'J;  West.  U.  Tel.  Co.  i.  Short, 
53  Ark.  434;  US.  W.  Uep.  649;  Wes t.  U. 
Tel.  Co.  r.  Cook,  61  Fed.  Rep.  625;  Gillis 
f.  Tel.  Co.,  61  Vt.  461;  17  Atl.  Rep.  736 
(Vt.).  Some  Courts  lay  it  down  that  the 
negligenceof  the  coi.ipany  mnst  hegross 
to  make  it  liable  under  sach  a  condi- 
tion. See  Tliomp.  Klectr.,  §  223  et  seq. 
Uedpath  i:  Tel.  Co.,  112  Mass.  7.'. ;  17  Am. 
Uep.6!i;  IJirkettt'.  Tel.  Co.,61  N.W.  Uep. 
645  (Mich.) ;  Primrose  r.  Tel.  Co.,  154  U. 
8.  1 ;  14  S.  C.  1098.  Fnller,  C.  J.,  and  Mr. 
jQHticc  Harlan  dissenting. 

3  West.  r.  Tel.  Co.  r.  illanchard,«upra. 

4  61  Vt.  4G1 ;  17  Atl.  Uep. 

507 


Jr^ 


mm 


§320 


MODERN  AGENCIES. 


[part  IV. 


'    '    '  I 


1    I 


■XJ 


a"? 

;:3:.: 


the  law  for  them  to  stipulate  for  exemption  from  lia- 
bility for  the  negligence  of  themselves  or  their  ser- 
vants; and  that  these  rules  apply  to  carriers  of  goods 
and  to  carriers  of  passengers  for  hire,  and  with  special 
force  to  the  latter.*  »  ♦  #  rJ^^l^  ^,j^gg  agrees  with 
the  general  rule  on  the  subject.  While  courts  differ 
widely  as  to  whether  telegraph  companies  can  lawfully 
stipulate  to  any  extent  against  liability  for  negligence, 
none  appear  to  have  gone  the  lenf^h  of  holding  that 
they  can  properly  stipulate  against  inability  for  gross 
negligence,  as  they  call  it.  But  many  of  the  cases  hold 
that  regulations  like  the  one  in  question,  as  to  non- 
liability in  respect  of  unrepeated  messages  and  similar 
regulations,  are  reasonable  precautions  for  telegrapli 
companies  to  take,  and  are  binding  upon  all  who  as- 
sent to  them,  so  as  to  exempt  the  company  from  lia- 
bility beyond  the  amount  stipulated,  for  any  cause  ex- 
cept gross  negligence  or  willful  misconduct  on  its  part. 
Such  a  regulation,  it  is  said,  does  not  undertake  wholly 
to  exempt  the  company  from  liability  for  loss,  but 
merely  requires  the  other  party  to  the  contract,  if  he 
considers  the  transmission  and  delivery  of  the  message 
of  such  importance  to  him  that  he  intends  to  hold  the 
company  responsible  in  damages  beyond  the  amouut 
paid  for  the  message  for  non-fulfillment  of  the  contract 
on  its  part,  to  increase  the  paj-nient  by  one-half;  and 
that  even  common  carriers  have  a  right  to  inquire  as 
to  the  quality  and  value  of  the  goods  and  packages 
intrusted  to  them  for  carriage,  and  are  not  liable  for 
goods  of  unusual  value,  if  false  answers  are  made  to 
their  inquiries.  In  some  cases,  gross  negligence  seems 
to  be  used  to  define  a  degree  of  carelessness  greater 
than  that  involved  in  ordinary  negligence,  and  one  of 


1  Railroad  Co.  c.  Lockwood,  17  Wall. 
U7. 

G08 


CII.  XXI.] 


MODERN  AGENCIES. 


§320 


cages 


which  the  law  takes  distinct  cognizanoe  as  an  inde- 
pendent ground  of  liability.     It  may  well  be  doubted 
whether  there  is  any  difference  in  law,  between  negli- 
gence and  gross  negligence.     The  tendency  of  judicial 
opinion,  is  to  deny  it     But,  however  that  may  be,  wo 
are  not  prepared  to  follow  this  line  of  cases.     As  this 
is  the  first  time  this  question  has  ever  been  before  this 
court  for  decision,  we  are  at  liberty  to  adopt  tbe  view 
we  regard  as  most  just  and  reasonable,  and  the  most 
consistent  with  sound  public  policy;  and  when  we  con- 
sider the  relation  of  telegraph  companies  to  the  public, 
the  character  and  extent  of  their  business,  and  the 
duties  and  obligations  incident  thereto,  we  see  no  suf- 
ficient reason  for  distinguishing  between  ordinary  and 
gross  negligence  in  this  behalf,  and  think  it  most  just 
and  reasonable,  and  most  consistent  with  sound  public 
policy,  that  they  be  not  allowed  to  stipulate  against 
liability     for     negligence     of     any     kind,     if     there 
be     more    than     one     kind.       Telegraph     companies 
do     not     deal     with     employers     on     equal     terms. 
There  is  a  necessity  for  their  employment.     They  are 
created  to  promote  public  convenience;  and  until  the 
introduction  of  tbe  telephone  they  were,  and  practically 
still  are,  especially  for  considerable  distances,  without 
competition,  save  among  tluMnselves,  In  the  transmis- 
sion of  Intelligence  by  electricity.     Their  business  has 
increaK'd  to  vast  ju'oportlons,  and  neither  the  commer- 
cial vorld  nor  the  general  public  can  dispense  with 
their  services.     It  is,  therefore,  just  and  reasonable 
that  they  should  not  be  allowed  to  take  advantage  of 
their  situation,  and  of  the  ne<*essities  of  the  public,  to 
exact  exemption  from  that  measure  of  duty  that  the 
law  imposes  upon  them,  and  that   public  policy  de- 
mands.    A  former  eminent  chief  justice  of  this  court, 
in  his  collection  of  American  Kailway  Cases,  says  that 

509 


w^wmm 


320 


MODERN  AGENCIES. 


[part  IV. 


'  '  '  1 


I    ! 


c: 
■Id 


X'^ 


IT*'" 
;p:: 


•'every  attempt  of  carriers,  by  general  notice  or  special 
contract,  to  excuse  themselves  from  responsibility  for 
losses  or  damages  resulting  in  any  degree  from  their 
own  want  of  care  and  faithfulness,  is  against  that  good 
faith  which  the  law  requires  as  the  basis  of  all  con- 
tracts or  employments,  and  therefore  based  upon  prin- 
ciples and  a  policy  which  the  law  will  not  uphold." 
This  doctrine  is  equally  applicable  to  telegraph  com- 
panies. In  the  recent  case  of  Smith  v.  Telegraph  Co.,-  it 
is  said  that  telegraph  companies  are  public  agents,  en- 
gaged in  a  quasi  public  business;  that  care  and  fidelity 
are  essential  to  their  character  as  public  servants, 
which  public  policy  forbids  that  they  should  abdicate  as 
to  the  public  by  a  contract  with  an  individual,  who  is 
but  one  of  millions  whos<»  business  will  not,  perhaps, 
admit  either  delay  or  contest  in  the  courts,  but  who  are 
compelled  to  submit  to  any  terms  that  the  company 
may  impose,  and  that  the  law  should  not  uphold  a  con- 
tract by  which  public  agents  seek  to  shelter  themselves 
from  the  consequences  of  their  own  Avrong  and  neglect; 
that  the  liability  of  telegrai)h  comi)anies  is  not  founded 
wholly  upon  contract;  that  they  are  chartered  for  pub- 
lic purposes,  extraordinary  powers  conferred  upon 
them,  the  right  of  eminent  domain  given  to  them,  and 
that  if  they  did  not  serve  the  public  they  could  not, 
constitutionally  string  wire  over  a  man's  land  Avithout 
his  consent;  wherefore  they  are  obliged  to  receive  and 
transmit  messages,  and  are  liable  for  negligence  with- 
out any  express  contract,  and  that,  if  they  rely  upon  a 
contract  or  a  notice  to  restrict  liability,  it  must  be  one 
not  in  violation  of  public  policy;  that,  in  view  of  the 
vast  interests  committed  to  them,  the  extraordinary 
powers  conferred  upon  them,  and  the  virtual  mono])oly 
they  enjoy,  courts  should  compel  them,  nolens  rolcnsy 

1  Eedf.  Amer.  Ry.  Caa.  227.  «  83  Ky.  104. 

510 


OH.  XXI.] 


MODERN  AGENCIES. 


§320 


to  perform  the  corresponding  duties  of  diligence  and 
good  faith  to  the  public  thereby  created;  that  any  other 
rule  would  defeat  the  very  purpose  for  which  the  com- 
panies are  chartered,  namely,  the  accurate  and  speedy 
transmission  of  messages  for  the  public;  that  while 
they  may  restrict  their  liability  to  a  reasonable  extent, 
they  cannot  to  the  extent  of  immunity  from  the  con- 
sequences of  their  own  negligence;  that  they  must 
bring  to  the  discharge  of  their  duties  that  degree  of 
care  and  skill  that  careful  and  prudent  men  exercise 
in  like  circumstances;  and  that  any  stipulation  by 
which  they  undertake  to  relieve  themselves  from  this 
duty,  or  to  restrict  their  liability  for  its  non-perform- 
ance, is  forbidden  by  the  demands  of  sound  public  pol- 
icy; and.  that  to  hold  otherwise,  would  arm  them  with 
very  dangerous  power,  and  leave  the  public  compara- 
tively remediless.  This  reasoning  is  entirely  satisfac- 
tory to  us,  and  we  adopt  it  as  our  own." 

Certainly,  when  the  repetition  of  the  message  would 
not  have  prevented  the  damage  complained  of,  the  com- 
pany should  not  be  protected  from  liability  by  reason 
of  the  failure  to  have  it  repeated,  as  for  example, 
where  the  message  is  never  sent  at  all,  or  negligently 
delayed,  or  not  delivered  at  all.*  And  it  is  clear  that  a 
telegraph  company  wouhl  not  be  allowed,  by  stipula- 
tions on  its  message  blanks  against  liability  for  delays 
in  transmitting  unrepeated  messages,  arising  from  the 
negligence  of  its  servants,  or  from  unavoidable  inter- 
ruptions in  the  working  of  its  lines,  to  relieve  itself 


m*\ 


1  Thomp.  Klectr.,  §  228.  West.  U.  Tel. 
Co.  r.  Graham,  1  Colo.  230;  9  Am.  Kep. 
136;  True  i-.  Tel.  Co.,  60  Me.  9;  Gulf  etc. 
U.  Co.  r.  Wilson,  69  Tex.  739;  7  S.  W. 
Rep.  653 ;  West.  U.  "tel.  Oo.  f.  Fenton,  52 
Ind.  1 ;  Baldwin  v.  Tel.  Co.,  64  Barb.  605; 
West.  U.  Tel.  Co.  r.  Henderson,  89  Ala. 
610;  7  Sonth.  Uep.  419;  West  U.  Tel.  Co. 


f.  Rroesche,  72  Tex.  604;  10  S.  W.  Rep. 
734 ;  West.  U.  Tel.  Co.  r.  Way  83  Ala.  543 ; 
4  Sonth.  Rep.  844;  Hirney  r.  Tel.  Co.,  18 
Md.  .341;  81  Am.  Dec  607;  Bryant  t>. 
Tel.  Co.,  1  Daly  675;  Spragno  v.  Tel.  Co. 
6  Daly  2U0;  West.  U.  Tel.  Co.  v.  Barrow, 
30  S.  W.  Uep.  378. 

511 


mm 


§320 


MODERIf  AGENCIES. 


[part  IV, 


from  liability  in  a  case  where  it  receives  a  message  with 
full  information  of  its  great  importance  and  the  neces- 
sity for  immediate  transmission,  knowing  at  the  time 
that  its  lines  were  then  down,  but  neither  informing 
the  sender  thereof,  so  as  to  give  him  an  opportunity 
to  send  by  another  line,  nor  itself  attempting  to  trans- 
mit the  dispatch  by  such  other  line.  In  such  a  case, 
the  conduct  of  the  company  operates  as  a  fraud  ui)ou 
the  sender;  and  it  cannot  therefore  be  allowed,  by  any 
stipulations  in  its  blanks,  to  reduce  the  right  of  recov- 
ery to  the  price  of  transmission,  but  it  is  liable  for  the 
full  damages  occasioned.*  The  courts  are,  in  short,  in- 
clined to  give  but  little  benefit  to  the  company  from  the 
use  of  such  conditions,  perhajis  for  the  reason  that  they 
are.  In  most  cases,  as  said  by  a  leai'ucd  writer  on  this 
subject,"  a  mere  sham,  their  design  being  to  take  ad- 
vantay;e  of  a  condition  whli-h  thev  know  will  si-areelv 
ever  be  performi'd,  because  the  obj<H't  of  resorting  to 
the  telegraph  being  to  secure  expedition  in  nuiklng  com- 
munications, this  fact  will  o])('rate  to  deter  a  customer 
in  haste  to  have  a  m(vssage  delivered,  from  ordering  it 
to  be  repeated.^ 

Conditions  liave  been  sustained  by  the  courts  requir- 
ing claims  to  be  itrcscnted  within  a  certain  number  of 
days,*  provided  the  time  given  be  reasonable;'*  for  the 


1  Pacillc  Post.  Tel.  Co.  i'.  Fleischer, 
66  FfU.  Hep.  7:JS;  66  Id.  8H8. 

2  Thomp.  Klectr.,§241. 

S"U  is  speaking  within  carefully 
chosen  boiimls  to  say  that  moat  of  the 
judicial  courts  in  nplioldiiiK  the  stipula- 
tion as  reasonable  fell  into  the  trap  with 
shameful  alacrity."  Thonip.  Ulectr.  §  '241. 

*  Yonng  f.  Tel.  Co.,  ii5  N.  V.  16:i;  Wolf 
f.  Tel.  Co.,  62  I'a.  St.  83;  1  Am.  Uep.  387; 
West.  U.Tel.  Co.  r  .Jones, '.t5  Ind.  228; 
48  Am.  Hep.  713;  West.  U.  Tel.  Co.  v. 
Mcredit)),95  Ind.  9.S;  Aiken  f.  Tel.  Co., 
6  S.  C.i»8;  Ileiman  v.  Tel.  Co,  67   Wis. 

512 


.W2 ;  16  \.  W.  Uep.  32 ;  Massengalo  v.  Tel. 
Co.,  17  Mo.  Ai)p.  2.'>7 ,  Cole  r.  Tel.  Co.,  3i 
.Minn.  2.'7;  22  \.  W.  Hep.  .^85;  West.  U. 
Tel.  Co.  1-.  Dunllcld,  11  Col.  ;i.i5;  18  I'ac. 
Hep.  ,14;  West.  U.  Tel.  Co.  r.  Hains,  GX 
Tex.  27;  Hill  f.  Tel.  Co.,  11  .S.  K.  Hep. 
874 ;  West.  U.  Tel.  Co.  v.  Ferguson,  27  S. 
W.  Hep.  1048  (Tex.). 

,1  Johnson  i-,  Tel,  Co,,M  Fed.  Hep.  362; 
nensley  v.  Tel.  Co.,  30  Fed.  Hep.  181; 
Johnson  v.  Tel.  Co.,  .S3  Fed,  Hep. 
.362;  Conrad  r.  Tel.  Co.,  29  Atl.  Itep. 
888  (I'a.) ;  West.  V.  Tel.  Co.  v.  I'hillips, 
30  S.  W,  Hep.  494  (Tex.). 


CH.  XXI.] 


MODERN  AGENCIES. 


§321 


same  reasons  which  sustain  such  conditions  in  the  case 
of  common  carriers.^  So,  a  rule  is  reasonable  that  a 
message  requiring  an  answer,  or  to  be  delivered  be- 
yond certain  limits,  shall  be  accompanied  by  a  deposit 
to  pay  for  it,-  but  neither  by  rule  or  contract  can  it  re- 
lieve itself  from  liability  for  a  statutory  penalty,^  nor 
for  neglect,^  either  in  day  messages  or  half  rate  night 
messages;'"'  nor  can  it  thus  limit  its  liabihiy  to  the 
cost  of  the  message." 

§  321.  Connecting  Lines^.  — By  statute  in  most,  if 
not  all  of  the  States,  it  is  incumbent  upon  telegraph 
(•(>mi)anies  to  receive  and  transmit  the  dispatches  of 
other  companies,  as  well  ais  of  the  public  generally.'^ 
and,  like  a  common  carrier,  a  telegraph  company  is  not 
ordinarilj*  liable  for  the  defaults  of  connecting  lines.* 
It  may,  however,  assume  a  through  liability  by  contract 
and  by  the  first  company  accepting  a  message  directed 
to  a  place  beyond  its  lines,  and  receiving  payment  for 


Itcp.  362; 
lep.  181; 
ll.  Hep. 
Itl.  Kep. 
rhillips, 


1  j4nte  §  158.  It  16  held  generally  that 
snch  u  couilition  does  not  apply  to  ac- 
tions to  recover  a  statutory  penalty  for 
neglect  to  transmit  or  delay  in  delivery. 
West.  I'.  Tel.  Co.  r.  Cobbs,  47  Ark.  344; 
68  Am.  Kep.  75G;  1  S.  \V.  Kep.  B.'il ;  West. 
U.  Tel.  Co.  r.  Cooledgo,  12  S.  K.  Itep.  264. 
A  stipulation  on  a  telegra))))  blank  that 
the  company  would  not  be  liable  unless 
claims  were  presented  within  GO  days  is 
in  violation  of  the  statute  of  Nebraska, 
expressly  providing  that  the  company 
shall  not  bo  relieved  from  liability  for 
non-delivery  of  telegrams,  or  for  mis- 
takes in  transmission,  by  reason  of  any 
clause,  condition,  or  agreement  con- 
taineil  in  its  printed  blanks.  West.  U. 
Tel  Co.  I'.  Kemp,  02  N*.  W.  Rep.  451. 

2  Hewlett  f.Tel.  Co.,  28  Fed.  Uep.  181; 
West.  I'.  Tel.  Co.  f.  McGuIre,  104  Ind. 
130;  54  Am.  Rep.  296;  2  N.  E.  Rep.  201; 
West.  U.  Tel.  Co.  t .  Henderson,  8"J  Ala. 
BIO;  7  South.  Uep.  419.  A  regulation  re- 
cjuiring  the  sender  to  pay  in  advance 
charges  tor  the  delivery  of  the  message 

34 


in  case  the  addressee  lives  beyond' 
its  free  delivery  limits,  irrespective  of 
whether  the  sender  knows  the  distance 
of  the  addressee's  residence  from  the 
station,  Is  upreasonable  and  invalid. 
West.  V.  Tel.  Co.  V.  Moore,  39  N.  K.  Uep. 
874  (Ind.). 

3  West.  U.  Tel.  Co.  v.  Buchanan,  35 
Ind.  429;  9  Am.  Rep.  744;  West.  U.  Tel. 
Co.  r.  Meek,  49  Ind.  53;  West.  U.Tel. 
Co.  r.  Adams,  87  Ind.  698;  44  Am.  Kep. 
76;  West.  U.  Tel.  Co.  v.  Young,  93  Ind. 
168. 

4  See  ante,  §  319. 

s  Thomp.  Klectr.,  §  201. 

6  Thomp.  Electr.,  §  193.  Fowler  v.  Tel. 
Co.,  80  Mo.  ,S81 ;  6  Am.  St.  Rep.  211 ;  15  Atl. 
Rep.  29;  True  v.  Tel.  Co.,  60  Me.  9;  11 
Am.  Rep.  156;  Gillis  r.  Tel.  Co.,61Vt. 
461, 

7  Thomp.  Klectr.,  §§  158,  261. 

«  Id.,  §  262.  Baldwin  v.  Tel.  Co.,  45  N. 
Y.  744 ;  6  Am.  Rep.  165 ;  Leonard  v.  Tel. 
Co.,  41  N.  Y.  644. 

513 


§322 


MODERN  AGENCIES. 


[part  17. 


CO 

n 

C'5 


y.> 


r" 

■•AM 

;p:: 


the  extra  service,  it  becomes  liable  for  the  negligence 
of  any  connecting  lines;  for  they  are  its  agents  in  the 
service,  and  not  the  sendei-'M.^  The  fiiist  company  may, 
by  special  contract  with  the  sender,  limit  its  liability 
to  defaults  occurring  upon  its  own  line,  and  protect 
itself  against  any  loss  occasioned  by  the  negligence  of 
the  connecting  company.-  If  the  connecting  c()m])any 
is  sued,  it  cannot  avail  itself  of  the  terms  and  condi- 
tions in  the  blank  limiting  the  liability  of  the  tirst 
company,^ 

§  322.     Contributory   Negrliffeiice    of  Sender. — 

Where  the  loss  is  traceable  to  the  negligence  of  the 
sender — as  for  examj)li'  wlici-e  he  gives  the  wrong 
address,'*  or  writes  the  telegram  t<o  indistinctly 
that  its  meaning  Ls  easily  mistaken"  —  it  will 
bar  the  pliiiii tilt's  action.  IJut  in  a  Pennsylvania 
caf^e,"  a  mesisage  wliich  wa*<  liamhHl  to  the  operator, 
ordering  of  a  florist  two  hand  bionqnetis,  WJis  sent 
by  him  as  an  "oi'der  for  two  hundred  bou(iuets." 
It  was  shown  in  defens<',  that  the  last  woi'«l  was  so 
badly  written  that  it  ap]»eare<l  to  be  "hund"  and  not 
"hand."  The  court  said:  "If  the  handwriting  was  so 
bad  that  he  could  not  read  it  correctly,  he  should  not 
have  undertaken  to  transmit  it;  but  the  business  of 
transmission  assumed,  it  was  very  ])lainly  his  <luty  to 
send  what  was  written.  It  was  no  alTair  of  his  lliat 
the  message  would  have  been   iusenwible.     Messages 


1  De  Untte  r.  Tel.  Co.,  1  Daly,  S47; 
HiiMvvin  I'.  Tel.  Co.,  1  Lans.  12,");  54  Hurb. 
505  ;  Iliink  of  New  Orleans  r.  Tel.  Co.,  27 
La.  Ann.  49;  Turner  r.  Tel.  Co. ,41  la. 
458;  20  .\ni.  Ucp.  fiO,^. 

t  West.  U.  Tel.  Co.  f.  Mnnford,87  Tenn. 
190;  10  Am.  St.  Rep.  fino;  10  3.  W.  Ucp. 
318;  West.  U.  Tel.  Co.  v.  Carew,  16  Mich. 
625. 

514 


3  Squire  f.  Tel.  Co.,  98  Mass.  2S2;  93 
Am.  Di'c.  157. 

4  Duslotles  r.  Tel.  Co.,  40  T.a.  Ann.  18.S; 
.S  South.  Kcp.  5GG;  West.  C.  Tel.  Co.  f. 
McDaniel,  103  Ind.  294;  2  X.  K.  Uep.  709. 
Weat.  C.  Tel.  Co.  v.  Foster,  64  Tox.  220; 
6.S  Am.  Uep.  7.')4. 

6  Koons  V.  Tel.  Co.,  102  Pa.  St.  1G4. 
B  New  York  etc.  Tel.  Co.  v.  Drcyburg, 
35  I'a.  St.  298 ;  78  Am.  Dec.  338. 


CH.  XXI,] 


MODERN  AGENCIES. 


§323 


2S2;  93 

^nn.  183; 
pi.  Co.  f. 
Ijep.  709. 
Vox.  220; 

164. 
Icybnrg, 


j 


are  often  sent  along  the  wires  that  are  unintelligible 
to  the  operator.  When  he  presumed  to  translate  the 
h'anilwritiug  and  to  add  letters  which  confessedly  were 
not  in  it,  ho  made  the  company  responsible  to  (the  re- 
ceiver), for  the  damages  which  resulted  from  his  wrong- 
doing." So,  though  the  sender  gives  no  street  number 
with  the  address,  if  he  is  not  asked  for  it,  this  will  be 
no  answer  to  a  suit  for  damages  for  delay.* 

§  323.  Telephone  Companies.  — The  same  general 
rules  which  apply  to  the  telegraph  api)ly  likewise  to  the 
telephone.  Within  two  years  after  the  first  telephone 
line  had  begun  business  in  Great  Britain,  the  courts 
of  that  country  decidwl  that  a  conversation  through  a 
telephone  was  a  ''telegram,"  and  that  the  telephone 
business  came  within  the  British  statute,  giving  to  the 
Postmaster-General  the  exclusive  control  of  the  trans- 
nli^!sion  of  messages  by  telegraph.^  It  is  also  well  set- 
tled in  the  Ignited  States,  that  a  telej)houe  company  is 
a  "telegraidi  company,"  within  those  words,  where 
found  in  a  statute.^  In  so  far,  then,  as  it  has  under- 
taken to  supply  a  public  demand  beyond  that  under- 
taken by  the  teh>grai)h  company,  it  has  become  a  pub- 
lic carrier  of  news,  subjwt  to  control  by  the  State  in  the 
regulation  of  its  charges  and  otherwise;^  obligated  to 

Co.  f.  Smith,  21  S.  E. 


1  West.  t;.  Tel 
Rep.  Hit!  ((ia.). 

2  Ally.  Geu.  V.  Kdison  Tel.  Co.,  0  Q.  1$. 
Div.  214. 

3  Chesapeake  etc.  Telephone  Co.  t*. 
Halt.  etc.  Telephone  Co.,  6r.Md..W;  69 
Am.  Ilep.  1G7;  7  All.  Rep.  8li9;  Franklin 
V.  Northwestern  Telephone  Co.,  69 
Iowa,  97;  28  N.  W.  Uep.  461;  lowii 
Union  Telephone  Co.  v.  Hoiird  of 
Kqoiilization,  G7  Town,  S.-jO;  23  N.  W. 
Rep  15%;  Attorncy-lii-npriil  v.  Kdison 
Telephone  Co.,  L.  R.  6  (}.  U.  Div.  '244; 
Wis.  Telephone  Co.  r.  Oskosh,  62  Wis. 
36;  21  N.  W.  Rep.  82S ;  Hell  Telephone 
Co.  c.  Com.,  69  Am.  Uep.  172. 


4  Cent.  Union  Telephone  Co.  t'.  Fal- 
ley,  1  IS  Ind.  I'M ;  Id  Am.  St.  Rep.  114 ;  19 
N.  K.  Rop.  604;  Cent.  Union  Tel.  Co.  v. 
Uradhury,  W,  Ind.  1;  5  X.  K.  Rop.  721. 
As  to  the  right  of  a  municipality 
to  regnhite  telephone  charges  see 
City  of  .St.  Louis  r.  Bell  Tel.  Co.,  96  Mo. 
62a;  9  Am.  St.  Uep.  370;  10  S.  W.  Rep. 
197.  I'hi!  fact  that  telephones  are  pat- 
ented, is  immaterial;  and  so  is  the 
fact  that  its  lines  extend  beyond  the 
state.  Ilockett  v.  .State,  10.5  Ind.  2.50;  55 
Am.  Rop.  201;  25  \.  K.  Hep.  178;  Cent.  U. 
Tel.  Co.  i:  Kalley,  118  Ind.  194;  10  Am.  S). 
Kep.  114;  19  N.  K.  Rep.  604.  It  cantvit 
avoid  a  statute  regnlating  its  chargt-e 

515 


w^ 


ff« 


! 


'r,3 


§324 


MODEKX  AGENCIES. 


[PAUT  IV. 


supply  to  any  individual  or  corporation,  instruments 
and  coun-ectious  with  itK  ex''Lan{jj('s,  and  it  cannot, 
thoreforo,  refuse  its  instruments  and  the  use  of  its  line« 
to  persons  desirin*;-  them,'  nor  has  it  a  rij;ht  to  discrim- 
inate between  different  telegraph  comiKinies." 

It  may,  however,  establisli  reas(mable  regulations  in 
the  conduct  of  its  business,  and  deny  to  persons  not 
complying  Avith  its  rules,  the  riglit  to  use  its  instru- 
ments. A  regulation  is  reasonable  that  persons  using 
the  instruuients  shall  conduct  their  conversations  in  a 
becoming  manner,  free  from  obscenity  or  profanity;^ 
that  a  subscriber  shall  not  use  his  instrunu'ut  in  trans- 
mitting mefiisages  for  a  rival  company.'  liut  a  regiila- 
tion  is  unreasoiuible  and  invalid  which  jn'ohibits  sub- 
scribers from  calling  a  nu'ssenger  othcnvise  tlian 
through  the  central  ottice.^ 

§  324.  HleepinpT  Car  Companies— Public  Affencios 
but  not  Coninion  Carriers. — Like  otlier  })ublic  agen- 
cies, the  sleci»ing  car  company  is  subject  to  i)ublic  reg- 
ulation and  control,  and  boun<l  to  treat  all  ix'rsons 
whose  patronage  it  solicits,  without  discrimination — 


bychanging  its  rental  plan  anrl  char^^ing 
for  each  conversation,  or  by  removing 
the  instrnmeiits  from  houses  and  ofllces 
of  subscribers,  and  ebtablishing  public 
telephone  stations,  and  then  chiiiping 
for  each  separate  use  of  the  telephone. 
Cent.  U.  Tcl.  Co.  f.  Kalley,  118  Jnd. 
194 ;  10  Am.  St.  Hep.  114  ;  19  S.  K.  Hep.  fi04. 
1  State  f.  Tel.  Co.,  36  Ohio  St.  '-!()G;  38 
Am.  Uep.  58:i;  State  f.  Nebraska  Tele- 
phone Co.,  19  Neb.  121);  5J  Am.  Kip.  404; 
22  N.  W.  Uep.  Z'?";  Bell  Telephone  Co.  v. 
Italt.  etc.  Telephone  Co.,  .W  Am.  Hep. 
172,  note;  State  v.  Hell  Telephone  Co., 
10  Cent.  L.  J.  4.S8;  11  Cent.  I..  .1.  .B57; 
Louisville  Trans.  Co.  r.  Am.  Dist.  Tele- 
phone Co.,  14  Chic.  L.  N.  15.  The  right 
of  the  individual  is  enforceable  by  man- 
•  'amtu.  Stale  r.  Neb.  Telephone  Co.,  17 
.Neb.  126;  52  Am.  Uep.  504;  22  N.  W.  Uep. 

516 


2.17;  Cent.  Cnion  Telephone  Co.  r.  Fal- 
ley,  118  Iiid.  184;  10  Am.  St.  Uep.  114;  19 
N.  K.  Uep.  (104;  State  r.  liell  Telephone 
Co.,  10  Cent.  r..  .1.  4.'!H;  11  Cent.  L.  J.  :ir.9; 
State  c.  Ui'll  Telephone  (;o., 21  K  d.  Uep. 
B39;  Hell  Telephone  Co.  v.  (;oni.,  Mi  Alb, 
L.  J.  4;  59  Am.  Hep.  17'J;  I.oui.sville 
Trans.  Co.  v.  Am.  Dist.  Tel.  Co.,  24  Alb. 
L.  .1.  283. 

2  State  r.  Tcl.  Co.,  .S6  Ohio  St.  290:38 
Am.  Hep.  5S3 ;  Com.  Cnion  Tel.  Co.  v. 
New  Englanil  Tel.  Co.,  Vt.  1889;  State  r. 
Hell  Telephone  Co.,  23  Fed.  Hep.  ."eo 
Am.  Hapid  Tcl.  Vo.  v.  Conn.  Tel.  Co.,  49 
Conn.  .S."i2;  44  Am.  Hep.  237. 

»  I'ugh  f.  Tel.  Co.,  27  Alb.  I..  .1.  ir,2. 

4  People  f.  Uudson  Uivcr  Telephone 
Co.,  19  Abb.  N.  C.  4«i. 

»  People  r.  Hudson  ttiver  Tel.  Co.,  19 
Abb.  N.  C.  466. 


CH.  XXI.] 


MODERN  AGENCIES. 


§324 


than 


1  St.  290;  38 
Tel.  Co.  t'. 
» ;  State  r. 
lUcp.  Pee 
Vel.  Co.,  49 

,1.  Ifi2. 
['ulephone 

el.  Co.,  19 


in  other  words,  it  is  bound  to  carry  all  persons  who, 
under  its  reasonable  rules,  apply  for  its  peculiar  form 
of  transportation.*     It  does    not,  however,  undertake 
the  duty — as  a  common  carrier  docs — of  trausportlug 
the  passenger  to  his  destination.      That  duty  is  as- 
sumed by  the  railroad  company,  and  for  any  breach  of 
contract  in  this  respect,  or  for  any  injury  which  the 
passenger  may  receive,  and  which  is  connected  with 
the  moving  of  the  train,  he  must  look  to  the  railroad 
company,  for  the  sleeping  car  comi)any  is  not  respon- 
sible for  the  negligence  or  misconduct  of  the  <'mi)loycs 
of  the  railroad,  charged  with  the  duty  of  operating  the 
train  of  which  the  sleeping  car  is  a  part.-     The. sleeping 
car  company  may  refuse  to  t^ell  a  jx'rson  a  berth  where 
all  have  been  twld  •even  though  a  single  piissenger  may 
have  purcha.sed  more  than  one — as  for  example,  a  sec- 
tion containing  two  berths.-*'     And  a  reasonable  latitude 
must  be  given  the  company  in  the  niuking  u])  of  berths 
and  fixing  the  time  and  order  of  doing  ^^(),  and  a  person 
who  luus  purchased  a  berth  cannot  require  that  his«hall 
be  nuide  uj)  at  once  when  according  to  the  rules  of  the 
company  Ww  orders  of  ])a.ssengers  eitlicr  for  meals  or 
berths  are  re«iuired  to  be  tilled  by  its  eniployeew  in  the 
order  they  are  given.^     And,  .so  far  as  its  responsibility 
for  the  baggage  and  valuables  of  ])as.sengens  is  con- 
cerned, the  sleejung  car  company  is  not  a  conunon  car- 
rier, nor  subject  to  the  insurance  liability  of  a  common 
carrier.'"' 


1  Nevin  v.  Pull.  Pal.  Car  Co.,  106  111. 
2W;46  Am.  Rep.  088;  I'nll.  Pal.  Car  Co. 
V.  T.iylor,  05  IikI.  153;  32  Am.  Hop.  ^7. 

2  Diivnl  r.  Pull.  Pal.  Car  Co.,  62  Fed. 
IJep.  205;  Campbell  r.  l*ull.  Pal.  Car  Co., 
42  Fed.  Rep  484;  Uliss  i-.  Pull.  Pal.  Car 
Co.,  10  Chic.  L.  N.339. 

•iSpiirli's  V.Mann  Boudoir  Car  Co.,  45 
Fed.  Kip.  .S31. 
*  Pull.  Pal.  Car  Co.  v.  Khrman,  4  South. 


Rep.  113  (Miss.), and  see  Pull.  Pal.  Car  Co. 
V.  n.ites,  14  .S.W.  \lvfi.  Hfi5 ;  1.")  /d.TgO  (Tex.), 
s  IMiiiu  (•  South.  Pull.  (;ar  l!o.,  3  Cent. 
L.  .J.y.y>.  Piillinan  Pal.  Cur  Co.  r.  .Smith, 
73  111.300;  21  Am  Ucp.  251;  Crozicr  f.  R. 
Co.,  43  How  Pr.  400;  Woodrntf  Sleeping 
Car  Ci).  I-  DieUl,  Hi  Intl.  474;  43  Am.  Rep. 
102;  Itarrnttc.  Pull.  Pal.  Car  Co.,  .'51  Fed. 
Ri'p.79fi;  Pull.  Pal  Car  Co.  v.  Freuden- 
stein,  34  Pac.  Rep.  S7b  (Colo.). 

517 


326 


MODERN  A0ENCIK8. 


[part  IV 


^2 

•J -J 


:i:..-« 


r- 

:p:; 
3?: 


§  325.  Not  Liable  as  Innkeepers. — In  a  numbor  of 
cases,  it  is  lilicwisc  denied — aIthouj;li  (he  car  iniy;ht 
well  be  likened  in  many  respects  to  a  niovinj;  inn — 
that  its  rc<<i)()ii«ibiliti(\s  are  those  of  an  iunl<eei)er.' 
This  view  of  the  status  of  the  sh'epinjj^  car  company 
dates  from  a  decision  rendered  in  tlie  Federal  Court 
in  187(5,'  wliere  die  following'  seven  reasons  wei'e  ;;,ivcu 
for  distinjjiuishiny  its  liability  from  that  of  an  inn- 
keej)er: 

1.  The  peculiar  construction  of  sleepinj^-cars  is  such 
as  to  render  it  almost  imj)ossil)le  for  the  company,  even 
with  the  most  careful  watch,  t(»  protect  the  occupants 
of  berths  "rom  bein*;  plundei-ed  by  the  occupants  of 
adjoining  sections.  All  the  berths  oi»en  uj)on  a  com- 
mon aisle,  and  are  secured  only  by  a  curtain,  behind 
Avhich  a  hand  may  be  slip])ed  from  an  adjoining;  or 
lower  berth,  with  scarcely  a  possibility  of  detection. 

2.  As  a  compensation  for  his  extraordinary  liabil- 
ity, the  inn-keepei*  has  a  lien  ujion  the  <;()ods  of  his 
guests  for  tiie  ])rice  of  their  entertainment.  There  in 
no  instance  where  the  i)roprietor  of  a  sleepinjj;-car  has 
ever  asserted  .such  lien,  and  it  is  ])resumed  that  none 
such  exists.  The  fact  that  he  is  paid  in  advance,  docs 
not  weaken  the  arjiument,  as  inn-keei)ers  are  a'sn  •■  ,- 
titled  to  pre  ]iayment. 

;j.  The  inn-keeper  is  oblijjed  to  receive  ev  ^nest 
who  applies  for  entertainment.     The  sleepinj;     .ir  re 


1  Ttlmu  V.  SoTilh.  l»iill.  Car  Co.,  »M/)r",' 
Diilil  i:  Wooilrutr,  10  Ci-nt.  I..  J.  fit;; 
Wovjiliiilf  Slocpiiif;  Car  Co.  i-.  Dii'hl,  84 
Iml.  471;  I'aliiiftiT  c.  Wapirr,  11  .Ml).  I.. 
J.  140;  Wi'lch.r.  I'ull.  I'al.CarCo.,  17  .\1)1). 
(N.  S.)  3.-)2;  Iti'visr.  ]{.  l'o.,.'ifi  Am.  Ki'p. 
SflOlHi.Mo.  App.  2.S;  Ul.  CiMil.  K.  Co.  r. 
ll^ndy,  G;t  Mi^s.  607;  M  Am.  Hep.  84<i; 
Jlamptonr.  Pull.  I'al.CarCo., 42  Mo.  App. 
140;  Knot  f.  .Sl('('piii(?('ar('o.,28Mo.  App. 
l'»9;S(alin«i'.l'iill-l'iil.CarCo.,24Mo.App. 
29;  I'ull.  I'al.  Cur  Co.  i'.  Ciardner,  IG  Am. 

518 


A  KiiK.  K.  U.  Cas.  HH  ;  Tracy  f.  Piill.  I'.il. 
Viit  (  <)  ,  r.7  How,  I'r.  l.')4  ;  l.cwi^  r.  N.  V. 
Cent.  U.  Co.,!tX.  K.  |{cp.  Gl.'i  {Ma<s.) ; 
I'ulliiian  I'al.CarCo.  r.  I'ollock,  .'i  S.  W. 
Kcp.  814  (Tvx.) ;  Carpi'ntcr  v.  H.  Co.,  124 
N.  Y.  5.!;  2fi  N'.  K.  Ilcp.  U77 ;  lianolt  v. 
I'nll.  I'al.  Car  Co.,  61  Feci.  Hep.  7'.»; ;  I'ull. 
I'al.  Car  (^o.  r.  Freuik-nst 'in,  ;^4  I'ac. 
U«'p.  578  (Colo.). 

2  Hluin  V.  South.  I'ull.  Car  Co.,  1   Flip. 
500;  3  Cent.  L.  J.  691 ;  Ff>l  Cils.  1574. 


CII.  XXI.] 


MODERN  AGENCIKS. 


§326 


Vt   18 

II'  has 

none 

',  (Iocs 

<()  "^• 

ill'  r«' 

•nil.  Pal. 
N.  Y. 
(M;i<s.); 
,  .-.  S.  \V. 

('.i.,124 
inott  f. 
■'.Ml;  I'lill. 

m   I'ac. 

1   Flip. 

1574. 


ceivps  only  first-class  passony,x'i's  travi'ling  upon  that 
pai'ticnlar  road. 

4.  The  Inn-ki'opci'  Is  l)0uu<l  to  furnlsli  food  as  well 
as  l()djj;inj>',  and  to  roccivf  and  care  for  the  <;oo«ls  of  his 
j>U('sts,  and,  unless  otherwise  j)rovlded  by  statute,  his 
liability  is  unrestrieted  in  auuMint.  The  sleeping'  ear 
fnrtdshes  a  bed  only,  and  that,  too,  usually  for  a  sin<;le 
ni};ht.  It  furnishes  no  food,  and  receives  no  luj.i^a<i;e, 
in  the  ordinary  sense  of  the  term.  The  conveniences 
of  the  toilet  are  simply  an  incident  to  the  lodj^inj;. 

5.  The  conveniences  of  a  public  inn  are  an  imjiera- 
tive  uei-essity  to  the  traveler,  who  must  otherwise  de- 
ix'ud  ui)on  i)rivate  hos]>itality  for  his  accommodation, 
notoriously  an  uncertain  reliance.  The  traveler  bv 
I'ail,  however,  is  under  no  fd>li<;ation  to  take  a  sleepiuc; 
car.  The  I'ailway  oll'ers  him  an  ordinary  coach,  and 
cares  for  his  };oo4ls  and  effects  in  a  van  es])ecially  pro- 
vided for  that  jturjiose. 

(I.  The  inn-keeper  may  exclude  from  his  house  every 
one  but  his  own  servants  and  quests.  The  sU'ej)in<;'  car 
is  obli}^ed  to  admit  the  employees  of  the  train  to  col- 
lect fares  and  control  its  movements. 

7.  The  sleei)in^  car  can  not  even  protect  its  p;uests, 
for  the  conductor  of  the  train  has  a  ri<;ht  to  put  them 
off  for  nonpayment  of  fare,  or  vicdation  of  its  rules 
and  regulations. 

^  32G.  Contrary  View.— Sleeping  Car  Company 
Liable  as  an  Innkeeper. — The  arguments  made  in 
the  Federal  case  just  cited,  have  bwn  more  than  once 
controverted,  and  the  correctness  of  the  reasoning  de- 
nied; and  it  is  urged: 

Though  it  is  true  that  the  several  berths  are  not  sep- 
arate rooms,  and  therefore  the  occupants  cannot  lock 
the  doors  and  exclude  all  intruders,  yet  it  has  never 

519 


m 


i  I 


CO 


...  •« 

;/3 


h 
•t^ 


3.V 


§326 


MODERN  AGENCIKR. 


[part  IV. 


y 


been  held  that  an  inn-keeper  was  excused  because  be 
was  compelled  to  put  two  or  moro  quests,  strangers  to 
each  other,  it  may  be,  into  the  same  room.  Scarcely 
a  year  passes  in  an}'  city  or  town,  but  l>y  reason  of 
some  convention  or  other  meetinji',  the  hotels  are  tilled 
and  cots  placed  in  the  aisles,  which  are  occu])ied  by 
guests  during  the  night,  j'et  no  landlord  would  chiiin 
exemption  for  loss  ui)on  tlie  ground  alone  that  his 
house  was  crowded,  or  that  be  did  not  have  a  separate 
room  for  each  guest.  Sui)pose  a  sleeping  car  to  remain 
st  itionary  at  one  point  for  months  or  years  as  a  ])lace 
for  the  entertainment  of  travelers,  and  patronized  as 
such,  would  the  fact  that  it  Avas  a  car  instead  of  a 
house,  exempt  it  from  the  liabilities  of  an  inn?  If  so, 
then  a  car  stationed  beside  an  inn  and  doing  the  same 
business  would,  without  reason,  be  fi-eed  from  liability, 
wdiile  th.e  inn-keeper  won  hi  be  held;  but  the  law  does 
not  thus  <liscrimiiiatt'  in  favor  of  any  one.  Suppose  the 
car  Avas  stationed  at  some  p(»iul  and  in  fact  an  inn  and 
its  proprietor  therefoi-e  responsihle  to  his  guests,  Avould 
this  liability  cease  because  the  car  was  daily  moved 
from  place  to  jdace?  If  so,  Avliy?  And  it  may  he 
added  that  many  of  the  ''  'cping  cars  now  in  use  in 
this  country,  and  called  •:,>oudoir,"  or  "compailment" 
cars,  are  divided  into  sections,  and  the  occupants  of 
each  section  may  bxdc  it.s  doors  just  as  a  guest  at 
an  inn  nmy.  Will  the  new  style  of  car  re(iuire  a  dif- 
ferent application  of  the  law?  The  argument  that 
thieves  might  engage  one  or  more  berths  in  a  car,  and 
at  the  firsr  oj)portnnity  leave  the  car  carrying  Avliat 
articles  they  could  steal  l)efore  leaving,  vould  extend 
as  Avell  to  the  case  of  the  innkeeper.  Thieves,  in  the 
garb  of  respectable  people,  may  lake  rooms  at  an  inn, 
and  afterwards  steal  Avliat  the\  an,  and  erscajx*,  yet 
no  one  would  contend  that  the  inn-keeper  would  not  be 
520 


M 


HI.  XXI.] 


MODERN  AGENCIES. 


§  3:?G 


in 

U'llt" 

s  of 

^l        )1(, 

(lif- 
that 

illDl 

what: 
:t('ii(l 
a  the 
inn, 
',  y«'t 
(tt  be 


responsible  for  the  property  so  stolon,  and  this,  whether 
it  is  stolen  at  night  or  in  the  day  time,  yet  in  many  of 
the  large  inns  of  this  country  at  least,  there  are  nu- 
merous doors  for  ingress  and  egress,  while  in  a  sleep- 
ing car  there  are  but  two. 

It  is  said  that  an  iun-keeper  has  a  lien  upon  the 
traveler's  baggage  for  the  amount  of  his  bill,  and  that 
no  such  lien  exists  in  favor  of  the  sleeping  car  com- 
pany. This  question  has  not  yet  been  presented  to 
any  court  for  the  reason  that  the  sleeping  car  com- 
panies transact  all  their  business  by  selling  tickets  for 
berths  or  sections,  and  demand  payment  in  advance. 
Hotel-keepers  do  the  same  in  many  cases  where  a 
doubt  exists  as  to  the  responsibility  of  the  guest,  and 
no  doubt  by  rule,  might  retjuire  prepaynivnt  in  every 
case.  There  is  no  occasion  for  a  lien  in  case  of  the 
sleeping  car,  therefore,  and  for  that  reason  none  so 
far    has  been  claimed. 

It  is  said  that  the  sleeping  car  differs  from  an  inn 
in  the  character  of  its  guests;  that  an  inn  must  receive 
all  who  ai)ply,  while  the  car  can  receive  none  but  those 
who  hold  first  clasn  tickets  or  other  means  of  trans- 
portation, entitling  th(Mn  to  ride  in  first  class  coaches. 
Itut  every  i)erson,  by  i)aying  the  price  of  a  tirst  class 
ticket,  may  become  entitled  to  purduise  a  ticket  and 
travel  in  a  sleeping  car.  It  is  merely  a  matter  of  ex- 
pense. The  same  rule  ai)i)lies  to  inns.  Thus,  the 
rates  at  a  first  class  inn,  rate  from  three  to  five  dollars 
per  day,  at  a  second  class,  about  one-half  a«  much, 
and  third  class  from  one-third  to  one-half  of  the 
amount.  As  well  complain  that  a  traveler  could  not 
stop  at  a  first  class  inn  for  the  price  charged  at  a  sec- 
ond or  third  class  inn. 

To  the  argument  that  the  sleeping  car  company  sup- 
plies a  bed  only,  and  not  meals,  and  that,  simply  for  a 

621 


^w 


r 


§327 


MODEltX  AOK.NCIKS. 


[part  IV. 


a 


.  I 


specified  time,  a  siiflicient  answer  is  that  to  constitute 
an  inn,  it  is  not  now  necessary  tliat  it  should  furnish 
meals  to  the  jjjuests  and  that  it  should  havt-  accouiiuo- 
datioms  for  horses  an<l  ctther  animals  of  travelers.* 
Where  meals  are  served  on  a  sleepiui"'  car,  as  they  jien- 
erally  are  on  the  best  roads,  it  could  hardly  he  con- 
tended that  it  differed  from  an  inn  in  its  accommoda- 
tions. If  it  is  insisted  that  there  is  no  contract  with 
the  hotel-keeper  as  to  the  lenjjth  of  tinu»  the  p,ucst  will 
stay,  and  in  this  rejiard  the  contract  (liffers  from  (hat 
of  the  sleej^inji"  car  coiii]»any,  which  is  for  dcliuitc  ser- 
vice, the  <lis(inction  is  more  technical  than  rciil.  Sup- 
pose a  traveler  should  <;o  to  a  hotel,  and  on  re<iister- 
injr  should  say  to  the  landlord:  "I  will  stay  with  you 
two,  three  or  f(;ur  days,  as  the  case  may  be,"  would 
he  thereby  become  a  mere  boarder  ami  not  a  '•uest? 
No  one  will  so  conten<l.  He  would  be  thei'e  temporar- 
ily until  his  business  was  completed,  und  the  iuu-l;eeper 
would  be  liable  to  hie  for  any  dereliction  of  duty  of 
himself  or  em])loyes.  Now,  sujtpose  a  traveler  jtur- 
chases  a  liist  class  ticket  and  sleeping;  car  ticket  froiu 
St.  Louis  to  Chicaji'o,  and  enters  the  sleejtinj;  car,  for 
the  use  of  which  he  has  jtaitl  in  advance,  will  the  fact 
that  the  contract  is  to  coutiuue  until  the  car  arrives 
at  ("hica«;'o,  some  ten  or  twelve  hours  thereafter, 
change  the  contract  from  that  of  the  iuu-keeper?- 

§  327.    This  Viow  SustaliHMl  in  Nobraska.— In  the 

case  of  Piilhiiaii  I'ahtcc  Car  Co.  v.  Linn  ,■'  (his  view  of  tjie 
liability  of  a  sicepiuii  c.ir  company  is  sustained,  jiud  it  is 
held  that  it  is  responsibh'  for  the  bat^gage  of  guests 
to  the  mmo  extent  as  an  iuu-kiee]H'r,  Maxwell,  J.,  in 


1  Sec  an<e  §  72.  which   tin'  iir>n'<"''iit>  itivi'ii  ithovc  are 

*  See  articlu  in  'i'  Am.  J..  Itcv.  24  from       takrii. 

•1  2»  Nch.  tm;  U  N.  W.  Ui>p.i2ii. 

C22 


en.  XXI.] 


MODERN  AGENCIES. 


§327 


Sup- 


a  learned  and  exhan.stive  judfjnient,  savinj:::  "It.  may 
I  veil  to  consider  wljat  the  e()nii)any  undertakes  to 
•n  form,  and  also  what  it  docs  not  undertake.  The 
latter  j^roposition  will  he  considered  iirst.  It  does  not 
undertake  to  furnish  the  railway  for  its  cars  to  run 
upon,  nor  the  motive  jyowei-  to  ])i'opel  them,  and  hence 
is  not  entitled  to  comi)ensation  for  the  ordinary  car- 
riage of  j)assen<;('rs.  It  <loes  invite  for  hire  all  pas- 
senji'ers  holding'  tirst  class  tirkets  to  occupy  its  cars. 
In  etVecl,  it  says  to  all  sue  h  ]iaK>.;en<iers:  'We  will  furn- 
ish you  safe,  pleasant,  <(»mmodious  cars,  with  all  pos- 
sible facilities  to  ^M'cvent  weariness  and  fatij^ue,  with 
comfortable  sleeidnj;  accommodaticms,  and  the  ueceH- 
sary  toilet  facilities,  if  you  i>ay  the  luice  demanded  in 
addition  to  the  ordinary  fare.'  The  natui'e  of  this  un- 
dei'takinji'  is  the  <|Uestion  foi' cotisideralion.  On  the 
one  hand,  it  is  (daimed  that,  so  far  as  the  comjiany 
Indds  its(df  out  as  perfoi-min;;  the  duties  of  an  inn- 
keejx'i',  so  far  it  should  be  charged  will'  tlie  strict  iia- 
bilitv  of  tlu'  same.  On  the  otliei-  it  is  sou-iht  to  make 
the  liability  of  the  com|>any  mei-idy  that  of  a  loduin;;- 
house  kee|»er.  In  the  very  able  and  carefully  i»i'epared 
briefs  of  the  a;';>rney  f(»r  the  plaintiff  in  error,  we  iind 
the  following-  objections  to  cliaruin<;  the  couijiany  with 
the  liability  of  an  inn-keeper,  lie  says:  'It  undertakes 
(1)  to  furnish  accommodations  to  'Iirst  (lass'  passen- 
irers  exclusivelv;  {'2)  to  furiiish  toilet  accctnnuodations 
to  such  passen};ers;  {'.\)  io  furnish  a  certain  specilied 
seat  or  bed  to  such  a  passen^ier;  (I)  to  furnish  a  ser- 
vant who  will  resjiond  to  all  proper  demands  on  his 
service  by  su(  h  passeiijici's,  promptly  and  jMditely;  but 
to  do  the.se  four  thinjis  for  a  limite<l  time,  which  is 
a;jn'ed  njKtn  betwec-n  it  and  each  |»assen<j;er,  in  ad- 
vance. It  does  not  nuike  even  this  ajjreemeut  with  all 
thoHe  who  travel   by   rail.     It    makes  this  a«;reement 


mm 


r 


§327 


MODEUN  AGENCIES. 


[part  IV. 


CO 

'JO 

r-Tl 


with  first  class  passeugers  exclusiwly.'  The  distinc- 
tioii  between  an  inn-keeper  and  a  lodging-liouse-keeper 
is  set  fortli  in  many  cases,  but  is  ver}'  well  drawn  in 
the  case  of  Cromwdl  v.  Stephcm}  After  quoting  the 
definition  of  an  *inn,'  as  given  by  Otikley,  C.  J.,  in  ^^"lntcr^ 
tnutc  V.  Clark,^  to-wit,  'where  all  who  corae  are  received 
a®  gueste,  without  any  previ'ouvS  agreement  as  to  the 
duration  of  their  )sitay  or  as  to  the  terms  of  their  enter- 
tainment;' and  from.  WiUard  v.  Rcinhardt,^  iu  whicli  the 
distinctions  between  a  boarding-house  and  au  inn 
were  deckired  to  be  this:  *Iu  «  boarding-house,  tlw 
guest  is  under  an  express  contract,  at  a  certain  rate, 
for  a  certain  period  of  time,  but  iu  an  inn, 
there,  is  no  express  engagement;  the  guest,  being 
on  his  way,  is  entertained  from  day  to  day,  according 
to  his  business,  upon  an  implied  contract;'  and 
from  Carprnfrr  v.  Tdj/lor,^  as  follows:  "Mere  eating- 
houses  cannot  be  cousidf^red  as  inns.  Tlwn'  'are 
wanting  in  some  of  the  requisites  necessary  to  consti- 
tute them  inns," — it  will  be  seen  that  a  distinction  is 
attempted  to  be  drawn  between  the  sleeping  car  c(un- 
pany  and  an  inn-keeper,  because  only  a  certain  class 
can  occupy  such  cars,  viz.,  persons  holding  first  class 
tickets,  whereas,  at  an  inn,  all  who  conduct  themselves 
properly  ma^'  be  entertained.  There  is  a  great  confu- 
sion iu  the  decisions  as  to  what  constitutes  an  'inn.' 
In  Cahfe's  Caac,^  it  was  held  that  inns  were  instiiuted 
for  passengers  and  wayfaring  men.  In  another  case, 
an  'inn'  is  defined  to  be  a  house  where  the  traveler  is 
furuishetl  all  he  has  occasion  for,  while  on  the  way. 
Thnnipsrm  v.  Lflcy."  Rouvier  defines  Mnn-keeper'  to  be 
'the  keeper  of  a  common,  inn  for  the  lodgment  and  en- 


1  2  Only,  15. 

2  5  Saudf.  247. 

3  2  E.  D.  Smith,  148. 

524 


*  1  Hilt.  IM. 
I  8('()ke,.S2. 
<  3  Burn.  &  Aid,,  283. 


ii 


)n  IS 
•oiii- 
nss 

ilSS 

vos 
iifu- 
mii." 

led 

a  so, 

n'  is 

Vciy. 

be 

t'li- 


oil.  XXI.] 


MODERN  AGENCIES. 


§  327 


tertainment  of  travelers  and  passengers,  their  horses 
and  attendants,  for  a  reasonable  conipensatiou.'      The 
inn-keeper  is  bound  to  take  in  and  receive  all  travelers 
and  wayfaring  persons,  and  entertain  them,  if  he  can 
accommodate  them,  and  the  same  is  true  of  a  sleeping 
car  company  as  to  all  passengers  holding  a  lirst  class 
ticket.     The  fact  that  persons  holding  second  or  third- 
class  tickets  agree,  in  efled,  in  consideration  of  lower 
fare,  to  waive  their  right  to  enter  a  sleei)ing  car,  does 
not  enter  into  the  case  any  more  than  that  of  a  trav- 
eler who,  to  avoid  the  exi)ensc  of  an  inn,  should  stop 
at  a  private  house.     In  any  event,  the  company  which 
sells  sleeping  car  tickets  to  all  lirst-class  ])assengers 
that  may  pay  the  i»rice,  to  that  extent  stands  in  the 
same  relation  as  an  inn-kee])er  who  must  for  hire,  en- 
tertain those  asking  for  «'ntertainment.     A  njore  ditti- 
cult  (juestion  is  to  projx'rly  detine  the  word  'guest'  at 
an   hot(d.     Parsons  detin;s  a   'guest'   to   be  one  who 
"comes  without  any  bargain  for  time,  remains  without 
one,  and  may  go  when  he  ]deases."'     This  if<  not  suf- 
ficiently com])rehensive  to  be  a  ])roper  definition.     In 
Wall  in;/  v.  Potter,-  the  ■Sui)renie  Court  of  Connecticut 
defines  the  word  'guest'  as  follows:  "A  guest  is  one  who 
patronizes  an  inn  as  such.     lint  it  is  sai<l  that  none 
but  a  traveler  vnu  be  a  guvst  at  an  inn,  in  a  legal  wnse,' 
We  do   not   suppose  that    the  ccturt   intended,   in   the 
delinition  above  quoted,  to  lay  stress  uj)on  the  word 
'traveler.'     It  is  used   in  a  broad  sense,  to  designate 
those  who  patronize  inns.     In  Wiiitcniiiitv  v.  Clark,^  the 
court  say  that,  in  order  to  «harge  a  i»arty  as  an  inn- 
keeper, it  is  not  nec<»ssary  to  ])rove  that  it  was  only  for 
the  reception  of  travelers  that  his  house  was  ke])t  open; 
it  being  sufficient  to  prove  that  all  who  came  were  re- 


1  2  Pars.  Coiit.  151. 
3  36  Cuiin.  183. 


1  &  8un(l(.  247 


525 


§327 


MODERN  AGEXCIES. 


[part  IV. 


c: 


r" 


:3 


ceived  as  {j;uests,  without  previous  agroomont  as  to  the 
time  or  torui>'  of  their  stay.  A  public  house  of  eutor- 
tainuHMit,  for  all  who  chose  to  visit  it,  is  the  defini- 
tion of  an  inn.  These  detiuitions  are  really  in  harmony 
with  oach  other.  Webster  defines  a  tir.Vi-ier  as  *oiu' 
who  travels  in  any  way.'  Distanie  is  not  m;>terial.  A 
townsman  or  lUMghbor  may  be  a  traveler,  and  there- 
fore, a  guest  at  an  inn,  as  well  as  he  who  comes  from 
a  distance,  or  from  a  foreign  country.  If  he  resides 
at  the  inn,  his  relati<ui  to  the  inn-keeper  is  Ihat  of  a 
boarder;  but  if  he  resides  away  from  it,  whether  far 
or  near,  and  comes  to  it  for  <'ntertaiTunent  as  a  traveler, 
and  receives  it  as  such,  i)aying  the  customary  i-ates, 
Ave  know  of  no  reason  why  he  should  n(»t  be  subjected 
to  all  the  duties  of  a  guest,  ami  enlilbMl  to  all  the  rights 
and  privileges  of  one.  In  short,  anyone  away  from 
home,  receiving  accommodations  at  an  inn  as  a  trav- 
eler, is  a  guest,  and  entitled  to  hold  tiie  inn-keeiter  re- 
s])onsibIe  as  such.'  This,  we  think,  is  a  correct  delini- 
tioM  of  the  word  'guest,'  and  we  adopt  the  same.'  In 
hiDihicr  V.  />(///,-  this  court  held  that  an  inn-keejx'r  was 
bound  t(>  take  all  possible  care  f(»r  the  safety  and  se- 
curity of  the  goods,  mom'y,  etc.,  of  his  guests  while  in 
his  house.  And  if  the  go((ds  or  money  of  a  guest  be 
stolen  from  the  inn,  through  m»  fault  oi-  neglect  of  the 
guest,  nor  by  a  companion  guest,  and  there  is  no  (evi- 
dence to  show  how  it.  was  done,  or  by  whom,  tlie  inn- 
keeper i.;  liable  for  the  loss.  This,  we  think,  is  a.  cor- 
rect sfatenu'Ut  (d'  the  law. 

"A  'lodger'  is  <lefineil  by  liouvier  to  be  *one  who  in- 
habits a  i)ortion  of  a  house  of  which  another  has  the 


1  Itcrkshiri!  Woolen  Co.  r.  I'rortor,  7 
Cusli.  417.  Ill  the  liitlei  rawe,  the  RueHt 
miiile  nil  ttrranifunieiit  as  to  llic  price  to 
bf  piiiil  per  week,  and  it  wiiis  held  tliiit 
tliiH  iliil  not  talvi!  away  bis  cliuractcr  »h  a 
traveler     and     Kucst.    Seu    also     Uall 

526 


f.  IMki",  liKI  .Ma-is.  4'.'r>;  Xorcross  t'. 
NoriToss.  B3  Ml'.  It'iH;  I'inUcrtnn  r.  Wood- 
ward, ;W  Cal..Vi7;  and  a  valualfli-  article 
in  U  Cent.  I..  J.'iiiC;  Hancock  r.  Uand, 
l7Unn,2:'.i. 
1  12  Neb.  5y7;  12  N.  W.  Uep.  109. 


CII.  XXI.] 


MODERN  AQEXCIES. 


§327 


'one 


o  in- 
the 

ross  t'. 
Wood- 
articlo 
Kana, 


general  possession  and  custody.'  There  is  some  confu- 
sion in  the  decisions,  arising  nuiinly  from  the  want  of 
a  clear  definition  of  what  constitutes  a  'guest'  as  dis- 
tinguished from  u  mere  Modger.'  Generally,  however, 
a  lodger  is  one  wlio,  for  the  time  heing,  has  his  home 
at  his  lodging  place.*  The  rule,  under  the  decif.;ions, 
is  not  of  universal  ai)[)lication,  but  nearly  so.^ 

"It  will  be  seen  that  the  engagement  of  the  sleeping 
car  c()mi)any,  so  far  as  it  goes,  is  exactly  the  same  as 
the  duties  assumed  by  an  inn-kee])er.  A  jjassenger,  on 
entering  a  sleeping  car  as  a  guest — because  that  is 
what  he  is,  in  fact — necessarilv  must  take  his  ordinarv 
weai'iug  aj)i>arel  with  him,  and  some  articles  for  con- 
venience, comfort,  or  ntn-essity.  The  articles,  when 
placed  in  the  care  of  the  company's  employees,  are 
iufni  hospitinii,  and  are  at  the  company's  risk.  The  lia- 
bility of  inn-kee])ers  is  imposed  from  considerations  of 
public  iKtlicy,  as  a  means  of  protecting  travehM's 
agaiiist  tlu'  negligence  and  dishcmest  ])ra('tices  of  the 
inn-ke<'])er  and  his  sei-vants.  Occasionally,  no  doubt, 
the  inn-keejx'r  is  subjected  to  losses  without  any  fault 
on  his  ]»art.  This,  however,  is  one  of  the  burdens  per- 
taining to  the  business,  and  the  courts  have  deemed 
it  necessary  to  enforce  this  wholesome  rigor,  to  insure 
the  security  of  travelers.  Itesides,  where  loss  is  sus- 
tained, neither  ])arty  being  in  fault,  it  must  be  borne 
by  one  of  tliein,  an<l  it  is  no  more  unjust  to  jdace  it  on 
the  inn-keeper  than  on  the  guest.  The  liabilities  inci- 
dent to  the  business,  are  to  be  considered  in  fixing  tlie 
charges  for  the  service.-*'  Excejtt  in  the  matter  of 
furnishing  meals,  there  seems  to  hr  no  essential  dif- 


I  Phillips  f.  Kvans,  64  Mo.  17. 

»  riiillips  r.  llcnson.SO  Moak,  Kn(?.  K. 
l',»;  TlioiiipsoM  t:  Ward,  L.  U.  «('.  1'.  327; 
Urftclliy  f.   Uaylis,  U.  K.   S  y.   H.    Div. 


175;    Ni'ss   v.  StcpliiMisoii,  L.  R.  9  Q.  B. 
Div.   'H'l;  Hii'kniaii    t'.  Tluitiias,  US  Ala. 
CCR;  niinaii  r.   State,  1  Tex.  App. '2'20. 
3  Mason  i'.  Tliompdou,9  I'ick.  283. 

527 


^ 


§327 


MODERN  AOENCIK8. 


[PAUT  IV. 


-J 


foropre  between  the  actoniiiiodations  at  an  inn,  and 
those  on  a  slccpin";  car,  except  that  the  hitter  are 
necessarily  on  a  snialh'r  scale  than  at  an  inn.  In  both 
cases  the  porter  meets  the  traveler  at  the  door,  and 
takes  whatever  portable  articles  he  may  have  witli  him. 
He  waits  npon  him  and  the  other  passenj^ers  in  the 
car  so  lonp;  as  they  remain  1  herein.  The  traveler  is 
not  reqnire<l  to  sit  in  his  seat  dnrin<>'  the  «lay,  bnt  may, 
if  he  so  desires,  {jo  forwai'd  into  the  other  cjiis  on  the 
train,  an<l  at  stations  may  <i;o  ont  on  the  idalform.  A 
passenjier  in  a  sleepinjj;  car  need  not  avail  himself  of 
these  i)rivile<j;es,  bnt  the  fact  that  he  may  do  so,  and 
that  many  persons  actnally  do  avail  themselves  of  the 
same,  is  wcdl  known  to  every  travcder,  and  to  the  com- 
pany, and  i«  a.  circumstance  in  the  case.  It  is  sai«l 
that  it  would  be  unjust  to  hold  the  company  to  the 
same  liability  as  an  inn-keeper,  because  thieves  miinlit 
take  one  or  mon'  berths  in  a  car,  and  at  the  tirst  oppor- 
tunity leave  the  ciir,  carryinj;  what  articles  they  «'ould 
steal  before  leavinj;.  The  same  is  true  of  an  inn-keei)er. 
Thieves,  in  the  <;ai-b  of  resjiectable  people,  may  take 
rooms  at  an  inn,  and  aft<M'\vards  steal  what  they  can, 
and  escape,  yet  no  one  would  contend  that  the  inn- 
ke«'per  would  not  be  icsponslble  for  the  i)ro])erty  so 
stolen  at  ni;xht  or  in  tjie  daytime;  yet  in  many  of  the 
lar^e  inns  of  this  country,  at  least,  there  are  numerous 
doors  for  injjres.s,  while  in  a  sleepinj:;  car  there  are  but 
two.  Were  meals  served  on  a  sleepinj;  car,  no  one 
would  conteml  that  it  dilTered  from  an  inn  in  its  accom- 
modations. In  this  State  meals  are  furnished  on  the 
throujjh  trains,  an<l  a  ])assenj!;er  nc^'d  not  leave  the 
train  from  the  time  of  enterinj;-  it,  until  he  reaches 
the  end  of  the  line.  This,  however,  does  not  a]>i»eiir 
to  have  been  the  case  on  the  railway  in  question.  Hut 
the  fact  that  meals  are  taken  at  desij^nattHi  stations  on 
5-'8 


J 


OH.  XXI.] 


MODERN  AGENCIES. 


§328 


>l)('iir 

liut 

lis  on 


the  line  of  the  road,  instead  of  on  the  train  itself,  does 
not  ('han<;e  the  character  of  the  service  rendered.  So 
far  as  such  services  are  rendercnl,  they  are  the  same  in 
kind  as  those  furnished  by  an  innkcojier;  and  the  se- 
curity of  travelers,  and  as  a  uknuis  of  ]>rotectinj;  them, 
not  only  a^jainst  the  ne«;lij;('nce,  but  also  against  the 
dishonest  i)ra('tices  of  the  a<i,ents  or  employees  of  the 
sleepinjj;  car  company,  requires  that  the  company,  so 
far  as  it  renders  service  as  an  inn-keeper,  shall  be  sub- 
ject to  like  liabilities  and  ob  11  <;;» lions.  The  judgment 
is,  therefore,  anirmed.     The  other  judges  concur." 

5J  n28.  The  Liability  of  tlie  Sleepinjr  Car  C  om- 
paiiy. — N4'ver(lieless,  according  to  the  Aveight  of  an 
tliorily,  the  liability  of  the  sleeping  car  company  is 
not  that  of  an  inn-keeper,  but  its  duty  in  this  respect, 
is  simply  to  take  reasonable  care  to  i)rotect  the  prop- 
erty of  the  passenger,  esjx'cially  while  he  is  asleej), 
arul  for  anv  neglect  of  this  duty,  it  will  be  resjx  .'slble.' 
It  must,  tlierefore,  keep  a  watch  during  (he  niglit,  see 
to  it  that  no  umnithori/.ed  perstms  inliude  tluMiiselves 
into  the  car,  an<l  t;ike  reasouiible  care  to  prevent  thefts 
by  the  occupants.-  This  duty  is  not,  however,  r«^ 
stricted  to  the  period  when  the  passenger  is  sleeping, 
but  it  extends  to  keeping  a  reasonable  watch  over  such 
of  his  neci'ssary  baggage  and  belongings  as  he  cannot 
conveniently  take  with  him,  nor  watch  himself,  while 
he  is  absent  from  his  berth  ])re])aring  his  toilet,  or  for 
other  necessary  pur]>os«'s,''  or  where  he  may  teiu- 
l)orarily  leave  the  car,  leaving  his  personal  baggage 
there.'     Thus,  the  company  ha«  been  held  liable,  where 


1  <':i-i'ri  cilfU  111  |:i»t  hvi)  sections. 

■-'  riliiiii   ( 'uso,  jiH;<rrt;   \V Irii If  Sleep- 

iliKCarCn.  r.  Ilielil.  81  Uid.  474;  Oiclll 
r.  Wiimlnilf,  Id  Cent.  1-.  .1.  W:  I'aliiulir 
V.  WiiK'ner,  II  Alli.  I..  .J.  U'.t;  III.  (int.  \l. 
Ci).  r.  H.-iiidy,  I'l,!  .Miis>.  r,il'.l;  .lii  .\iii.  Ue|i. 
6i6,  Si'uliUK  <■  1'kII-  I'ltl.   I'ltr  Co.,  24  Alu. 

3B 


App.  21);  Carpenter  r.  It.  Co.,  124   N.   Y 
S.t;  2C,  N.  K.  Itfp.  277. 

■1  Ui)<>t  r.  Slei'piiijf  ('iir('(>.,28  Mu.  A)ip. 
I'.^l. 

i     I'llll.  I'al.   Car    Co.    r.    I'oUoek,    5  S. 
W.  Kep.  81ft  (Tex.)- 

529 


mm 


§328 


MODEUN  AOENCIES. 


[part  IV. 


CO 

-3 


^:^ 

•i;« 


pi'oi)orty  in  the  plalntilT'.s  bortli  was  stolen  while  ho 
was  asleep,  both  the  couduttor  and  porter  belnj>  asleep 
at  the  rear  end  of  the  car  for  two  or  three  hours,  leav- 
in<j;  the  front  dcMir  unlocked,  and  a  brakenian  slttinjj;  in 
the  fiM)ut  end  of  the  car;'  where  the  conductor  was  ab- 
sent from  the  car  for  a  distance  of  S4  miles,  having;  left 
the  train  alto<;('ther,  leavinjj  no  one  about  the  car  but 
the  porter,  who  was  enpij^ed  in  blackiuj"'  boots  in  a 
room  at  the  end  of  the  ear;-  where  the  plaint  ilT,  havinj; 
occasion  to  open  her  valise,  which  was  in  her  bertli, 
was  assisted  by  the  con<luctor  who,  instead  of  n'turii- 
inj;  it  to  the  berth,  said  it  would  be  i)erfe(tly  safe  in 
the  un(K'cupied  seat  opposite,  and  himself  jdaccd  it 
there,  from  which  plac<'  it  was  stolen  in  tiie  ui^ht;'' 
where  nwuiey  was  stolen  from  the  i>asseu^ei*'s  berth 
while  he  was  asleep;  another  passenj^er  lost  a  sum  of 
money  in  a  similar  manner  at  the  same  time;  aiul  the 
porter  was  found  asleep  in  the  early  moniin<;,  havinj^ 
been  on  duty  for  .'{(I  hours,  im  ludinj^  two  nij^hts,  cdu- 
tiuuouHly;^  wher«'  the  only  em|>loyee  ke])t  u\\  the  car 
M'hile  it  ran  from  New  Voi'k  to  Boston,  makinjj  eij^ht 
stoi)s  on  the  way,  wa«  a  man  who  acted  as  conductor, 
poiter  and  bootblack/' 

The  word  l>a;,^jia;je  has  the  same  meaninjj  here  as 
in  a  former  section,  includiu};  clothinj:;  and  personal 
ornaments,  and  ai'ticles  for  jtei-sonal  use,  and  a  I'eason- 
able  sum  of  money  for  hi.s  travelinj;  <'\pens(^s,"  but 
not    money    in    the   keepinj;   of   the   jiassenijer   to   an 


1  I 


1  Itlnm  (I-iso,  titpra. 

!  J)i(lil  V.  Woodnitf,  inOent.  I-.  .1.  fifi; 
W<>(>(lniirsU'<'p'"KCiir  Co.  r.  Dii'hl,  84 
Iiid.  -174.  Ami  sec  Hi-vis  r.  \l.  ('(>.,r)C  Am. 
Kc'p.  S,"i(l;  2G  Ml).  \pp.  2:1;  ."^caliiiK  v.  I'lill. 
I'lil.  {,'iir(o.,24  .Mo.  App.  /.i;  I'lill.  I'.il. 
Car  Co.  t'.  (iunliit'i-,  IC  .\iii.  A  KriK.  H.  K. 

Ciis.  :m. 

1  n^iinpton  f.  I>iill.  I'ltl.  Car  Co.,  43  Mo. 
(App.)  140. 

530 


i  Lt'Wis  I'.  .Sew  York  Cent.  .'^li'epiiiK 
Car  Co.,  9  N.  K.  Uop.  fil."). 

R  Ciirpi-ntor  f.  K.  I'o.,  2r,  N.  K.  Kcp. 
277;  124  N.  V.  5,1. 

fi  Illiiin'^;  Casi',  aii/r;  Dii'lil  r.  Wood- 
nilT,  inCciil.  I,., I.  (Ill;  Wiioilriitf  Slc'i|iiii(? 
Car  Co.  t:  DichI,  84  Iiul.  474;  K.m.I  v. 
SlfcpiiiK'  (iir  Co,,  :m  Mo.  App.  111".";  Ilaiiip- 
ton  t'.  I'lilliiiaii  I'alHCu  Ciir  Co.,  42  Mo. 
App.  i:^4. 


CII.  XXI.] 


MODERN  AGENCIES. 


§  n28 


TO  as 
•sonal 
'uson- 
,«  but 
(»  an 

■Jli'L'ping 

K.   Rip. 

Wood- 

I!<M.t    V. 

<;  llaiiip- 
42   Mo. 


amount  beyond  what  would  be  required  for  traveling 
expenses.* 

The  duty  of  a  sleeping:  ear  company  to  protect  its 
pass<Mi<j;ers  from  thieves,  cannot  be  \n){  rid  of  by  words 
printed  upon  the  passenger's  ticket,  or  notices  posted 
in  the  car.- 

The  sleei>ing  car  company  is  liable  for  such  articles 
in  the  custody  of  the  passen};-er  as  fall  within  the  de- 
nomination of  "bag<iaj,'e,"  and  which  there  is  a  duty 
ui)on  it  to  protect,  even  where  they  are  stolen  or  ab- 
stracted by  its  ►servants,''  and  in  wuch  an  action,  the 


1  III.  (Vnt.  K.  Co.  r.  Iliniily,  03  Miss. 
609;  W!  .\iii.  Ucp.  84Ci;  IJoi.t  r.  Slucpinjf 
CarCii.,  2H  Mo.  .\pp.  I'.iT;  Wilson  r.  K. 
Co.,.t2  Mo.  .\pp.  (WJ;  Uiiiiolt  r.  Cull.  I'al. 
r«r('(>.,fil  Fed.  Ucp.  T'.W;  Ilillis  iv  K.  Co., 
33  N.  W.  Ui'p.  613  (la.);  IMum's  case, 
ante. 

i  Lonisvilli!  etc.  H.  Co.r.  KiitzcnborKcr, 
16  I-cii,  3S0;  H7  .\in.  Ucp.  2.12 ;  1  S.  \V.  Ucp. 
44;  ,>stcvcn>oii  r.  IMill.  I'al.  I'ar  Co.,  2ii  S. 
W.  Ucp.  Hi  (Tex.). 

8  Uoot  V.  .'^lecpiiiK  Car  Co.,  2S  .Mo.  .\pp. 
199.  In  a  recent  case  in  (icorjtia  (Cull. 
I*l»l.  Car  Co.  f.  Martin,  22  S.  K.  Ucp.  7U0), 
apassentji'r  was  rohhcii  of  lier  jewelry 
anil  money  while  in  her  berth,  ami  the 
SuprcMie  Court  after  a  review  of  the  evi- 
dence alllnns  a  juilffuient  against  the 
company  in  this  lanKna;,'c:  "That  this 
passcntri'r  lost  her  Jewelry  and  money, 
and  that  she  lost  them  while  a  passencrer 
in  this  car,  are  liolh  facts  which  maybe 
taken  as  established  beyond  controversy 
by  the  cvideiiee.  The  plaintilf's  tes- 
timony places  the  porter,  the  servant  of 
this  defendant,  in  such  a  situation  as 
that  he  niiKht  easily  have  purloined  her 
property.  According  to  his  own  state- 
ment, it  wa8  not  ncce^sa^y  for  him  to 
have  put  his  head  inside  her  berth. 
Acoordiii)?  to  her  statement,  he  did 
put  his  head  inside  of  her  berth,  and 
thereafter  she  found  her  satchel  open 
and  her  pnrse  f(one.  These  circumstan- 
ces,I'ven  in  the  face  of  a  denial  by  the 
porter,  would  huvt;  furnished  strong  in- 
ferential evidence  that  ho  was  the  man 
who  upprupriutcd  thesegoods    Uisguilt, 


we  think,  is  practically  deninnstratcd  by 
his  on  11  lestiiiiouy  and  that  of  tlie  cou- 
diictor.  ,\ceiinliiig  to  the  coudiietur,  he 
was  constantly  on  guard  from  the  time 
the  p.'i^sengers  retired  the  evening  before 
until  .'t  o'clock  in  the  niornliig ;  and  if  hi« 
testimony  be  tnii — and  it  is  not  disputed 
by  any  one— it  would  have  been  impossi- 
ble for  any  per-on  witliout  his  knowl- 
edge to  have  iiiiiudecj  iipdii  the  pri\acy 
of  this  passenger  during  this  interval, 
and  stolen  her  property.  According  to 
the  testimony  of  the  porter,  from  3 
o'clock  a.  ni.  until  the  time  when  the 
passengers  arose  he  was  coustaiitly  on 
guard  for  the  purpose  of  protecting  the 
persons  and  property  of  the  jia-scugers 
against  the  di'predationsof  other  people  ; 
that  he  was  in  a  position  «  here  he  ccuild 
have  seen  and  woulil  hHve  seen  any 
perHon  who  intruded  upon  thr 
pas-eiigers  in  that  car,  ami  that  no 
sueli  thing  was  done.  ."So  tli.it,  according 
to  his  own  statement  and  the  statement 
of  the  couduetor,  it  would  havebjcu  iiu- 
possible  for  any  per.-on  other  than  one 
of  these  two  to  h.ive  robbed  this  pluintiti 
belwer'n  the  hour  when  Bhe  retired  and 
the  hour  when  she  aroM-.  Itut  since  she 
was  robbed,  and  sinci',  as  wo  lu^.v-e  seen, 
it  would  have  been  impossible  for  any 
;ierson  other  than  one  of  these  two  to 
have  robbed  her,  then  the  inference  is 
that  she  vras  robbed  by  the  one  or  the 
other  of  these  employes;  and  for  tliu  lar- 
ceny of  either  the  company  would  be 
responsible.  \Vi' think  the  evijk'nre  of 
this  plaiutiS  established  beyond  coutro- 

531 


wm 


ii 


§328 


M(U)KUX  AGKNCIES. 


[FAHT  IV. 


O 
'JO 

a 


contributory  nof^Ii^cncr  of  tin*  passongor  would  be  no 
defense'  Hut  as  to  article**  not  ba<i<;a^e,  the  passen- 
jfer  liavin^  no  rij;lit  to  llieir  free  trausiiortation,  tliere 
Is  no  duty  on  tlie  «arrier  to  protect  it,  and  if  sudi  jnop. 
orty  sii(»uld  be  stolen  by  its  servants,  tlie  (-anier  would 
not  be  i*es]H)nsibIe,  for  "a  master  is  not  liable  for  the 
torts  or  crinu's  his  servant  «*oiuinits,  not  witliiu  the 
Hcope  of  liis  eiiipbtyiuent,  but  to  elTect.  souie  [tui'pose 
of  his  own,  unless  such  tort  or  crinie  is  of  itself  a  vio- 
lation (tf  souie  duly  which  the  master  has  assumed 
toward  the  iiei'srtu  iujui-ed,  and  which  he  has  under- 
taken to  |»erforui  throiijjh  the  servant."- 

And  the  slee])iu'4'  car  company  is  boun<l  to  ])rotect 
the /<(7*.s'o».v  of  its  jwitronn  against  the  uej;li;;euce  or  will- 
ful misconduct  of  its  emitloyees,  wIkmu  it  ])laces  in 
chai'uc  of  its  cai's.  iu  a  case  in  tin*  Federal  ('(Uirt,  a 
feiuaie  j)asseui;('r,  wiiile  in  Iier  berth,  was  iudecriitly 
nssaullcd  by  tlie  |)orter,  and  a  verdict  a<:;aiusl  tiierom- 
pauy  for  8ll,tMK>  was  anirmed  by  the  Supreme  Court 
of  the  I'liited  Siales.-' 


Torsy  l)Mt  the  porter  intriuliil  Iiir  IicikI 
ililo  luT  liortli  anil  hlolc  lier  jiroptTly. 
Ht- WHS  (lie  inTMiti  iili'iitiOiMl  bylhupas 
(eiiKcr  as  liaviti^  jiitnnli'il  upon  liur 
privacy,  Acronliiijjlo  lii»  Ir-liincniy,  at 
tliu  tiiiio  oho  Mays  It  was  iluiic  it  woiilil 
htivti  lii'cii  imp  issiliU'  for  itiiy  prrnii 
OtIiiM- lliaii  he  to  have  ('iili<re>l  niiol)- 
Hervi'il.  Tliis  was  tlie  vitMv  the  Jury 
mlKlit  liavo  tnki'ii  of  tlili)  (mhi;  in  tli» 
conn  lirlow.  Till'  iiiily  ruaso  lalili'  con- 
clnsion  to  III' ilrawn  from  this  cviili'nco 
is  that  the  Hcrvant  of  thr  ilifcnilaiit, 
whose  ilnly  it  was  to  Kiianl  the  person 
•  ml  property  of  this  pa-'MiMi({cr  while 
■he  .slep!,  pni'loineil  thu  chattels  HUeit 
for;  ami  we  Iherufore  tliinl;  Hint,  with- 
out reference  to  tht-  liahility  iniposoil 
npon  the  company  fur  inJnrlcH  rcsullinK 
from  tlio  neK'ilJenccof  itrt  employes,  the 
jnry  were  jnstilieil  in  llmliiiK  u^ninHt  it 
becfiine  of  the  larceny  eomniltttid  by  Us 
aervautu.'' 

532 


1  Hoot  r.  Sloopini?  Car  ('o.,«</irrj.  "The 
<lnly  of  the  (lefemlant  thrmiKli  ilx  ser- 
vants," it  iM  well  Hniil  in  this  cane 
''wonlil  be  to  pr  itecl  the  passen^rer's 
prope.-ty  nlthonirli  ilincovereil  in  an  cx- 
poseil  cunililioii  wliiTe  his  eaieli-.-MiCMi 
may  have  left  il."  Itniiner  r.  He  Men- 
.lo/a  |i;  >.  W.  Uep.  77(1  (lev.);  Wilson 
f.  |{.  Co.,  :V2  Mo.  Api'.  ftsi;  |-iill.  I'al. 
(  art  o.  r.  Matthews,  12  S.  W.  Itop.  744 
(Tex.). 

-  Knot  r.  SlcepinnCar  Co., 'J**  Mo.  App. 
Iltli,  citinK  Crofl  r.  AIimom,  i  11.  .t  Ahl. 
eiKi;  Coal  Co.  r.  Ilelninn,  Ht)  I'n.  .*-(.  41**; 
Mitchell  r.  Crassweller,  l.t  t'.  It.  2M; 
Jackson  f.  U.  ('ci,,H7  Mo.   4:iii;  Kinncane 

V.  .'^iiiall,    !    lO-p.  :^l.'i;  ."-ehniit  I'.    Ill I, 

1)  Wenil.  '2':i;  Wliitcmore  v.  Ilarrohli'on, 
'i  I.eii..(l2. 

3  Caniphell  r.  I'ull.  I'al.  Car  Co.,  4J 
Ketl.  Uep.  4S4;  alUrnieiJ  in  114  V.  S.  loHO 
(Co-op.  lOil.) ;  uee  farUieron  the  subject 
Ante  i  7fM. 


ClI.  XXI.] 


MODEim  AOKNCIES. 


§  3i>y 


'The 

Is   sor- 
caue 

•n^'or's 
an  fi- 

■>Mlt'Nli 

Men- 
Wilson 
II.  I'ul. 
Iiip.  744 

Apr- 

.V    A  111. 
■<l.    i\H\ 

■2m;  ; 

iiicalltf 
IWonil. 

ilil,«»n, 


§329.     Passenger  ElovatorH. — The    developinout 
of  our  law,  and  the  application  of  its  piiucipli's  to 
uow  «oiHli(ioiis,  tlnds  a  j'ocmI  iilasiration  in  that  most 
niodfi'ii  of  invi'iilions,  tlic  passenger  elevator.       It   in 
harill.v  more  than  live  years  .since  the  lirst.  case  of  tliis 
character  was  presented,  in  all  its  important  aspects, 
to  a  conrt  of  last  renort;'  but  when  so  presented,  that 
court   f<Mind  little  dilViculty  in  applyin<;-  to  il,  the  rules 
j^oveiuinj;'  the  liabilities  of  carriers  of  i>assenj>('rs  by 
the  <d(ler  afi'enciw  of  shij),  staye-coacli  and  railroad,- 
and  in  holdiu};  that  llu'  proprietor  of  elevators  for  (ho 
earryin;;-  of  persctns,  is  subject  to  the  strict  rules  {^ov- 
orninj;'  other  carriers  of  passenjicrs;    that  he  under* 
takes   to  carry   jtersons   ridinj;-  thereon,  as  safely   as 
human  care  aiul  foresif^ht  can  do  so;""  that  he  is  liable 
for  the  slijihtest  ne^h'ct  in  rejiard  to  the  vehicles  them- 
selves, and  must  exercise  exti'a(U-dinary  diligence  and 
care  in  their  manajicment ;    that   he  must   use  the  ut- 
most care  and  dili;;ence  in  pi-ovidin^'  safe  and  suitable 
vehicles  of  this  character,  and  in  their  nuina<;'ement, 
by  projter  a^-enls  and  servant.s,^  both  in  receiving,  car- 
ryinj;-  and  di.scharj^inj;  passeuiicrs;"'  that  he  is  respon- 


1  Tivailwell  V.  WhittiiT,  80  Ciil.  87.^,-  U 
Am.  SI.  It. -p.  i:.-);  21 1'ac.  Ktp.  W>. 

-  Tlio  riiiimnn  of  tliu  eli'Vlitor  Is  an  in- 
Titiillon  to  all  piTsoiw  to  use  it.  Hut 
wlu're  ill  a  storo  tlievu  waH  an  elevator 
for  pas:«L'nKors  and  anotlirr  elevator  for 
freJKlit,  anil  a  person  useil  the  freight 
cl(  vatiir  Mini  wii>i  injiircil  llie  roiirtsaii): 
"Defeiiilants  had  niMilo  ample  provision 
for  Ilie  ti  aiisportiition  of  persou.s  to  the 
uppi  r  Hours  of  the  biiilitinK.  I'lainlitf 
chose  to  I  iilc  in  an  elevator  which  to  his 
knowli'ilfre  wai  provided  tor  another 
purpose,  Knowin>;at  the  siinie  time  tlinl 
a  pBsniMii;i'r  elevator  had  heen  provided 
and  was  In  operation.  The  invitation 
«xleiiilini{  from  the  defendanl.s  to  take 
the  passeiiKer  elevator  was  In  its  na- 
ture expn.'ss,  and  t'lo  situation  nega- 
tived any  possible  inference  of  an  in\i- 


talion  to  take  the  freight  elevator." 
Amerine  r.  I'orteouB,  03  N.  W.  Uep.  300 
(Mieh.) 

•'!  Treadwell  r.  Whittier,  in(/)r(i;  (lood' 
sell  r.  Taylor,  41  Minn.  2li7;  ID  Am.  St. 
Uep.  7O0;  42  X.  \V.  Kep.  B7;;  iililer  as  to 
fnight elevators  unless  used  to  carry 
pas-cnv.rs.  Kerne.  I)e  Castro  Co.,  12B 
N.  ^.  ,Mi;  2:.  N.  K.  Uep.  1071;  liibson  v. 
Leonnrd,  32  \.  K.  Uep.  182. 

■•  Tread wel '  r.  Whittier, (tii/ira;  TonsoJ 
V.  l!..l>eils,  114  N.  V.312;  11  Am.  .St.  Uep. 
6.V.;  21  N.  K.  Kep.  ;«'.!;  IlourBoe.  White, 
34  N.  K.  Uep.  rn  ;  Murphy  r.  llavH.GS 
Hun,  4"i();  2.3  X.  V.  (Supp.)  70;  I'eoplo'S 
liaiik  V.  .Morgolofski,  7.')Md.  432;  23  Atl. 
Hep.  11127. 

s  Mitehell  v.  Marker,  64  Fed.  Rep.  637; 
02  Fed.  Kep.  l.W 

533 


§329 


MODERN  AGENCIES. 


[part  IV. 


CO 


-n 


siblo  for  defects  in  them  wliich  niii^ht  have  been  dis- 
covered by  tlie  most  careful  and  thorough  examina- 
tion;' that  he  is  resj^oueible  for  llie  ne<;lect  of  the  mau- 
ufachirer;-  Ihat  the  bre:ikin<j;  of  aaiy  i>art  of  tiie  ma- 
chinery raises  a  iM'csnmjition  of  n(';;li};(MU'e  on  liis 
part,  and  tiirows  tlie  burden  of  exoneration  npon  liim;* 
and  that  this  extraordinary  res])onsibility  is  towards 
passengers  an<l  not  towanls  his  own  em])loyes  and  ser- 
vants.-*  "The  same  degree  of  care  and  ret<])onsibili(y,'^ 
say  the  Court  in  tliis  case,-"'  "nnist  altacli  to  one  con- 
trolling and  running  a*;  (dcvator.  Persons  wlio  are 
lifted  by  elevators,  are  snbj(H'ted  to  great  j-isks  to  life 
and  limb.  They  are  hoisted,  vertically,  and  are  un- 
able, in  case  of  the  breaking  of  the  nmchinery,  to  help 
themselves.  The])erson  running  such  elevator,  must  be 
held  to  undertake  to  raise  such  jx'rsons  safely,  as  far 
as  human  caiv  and  I'oresigiit  will  go.  'IMie  law  holds 
him  to  t!»e  utmost  care  and  diligence  of  tlie  very  cau- 
tious persons,  and  responsible  l'(»r  the  slightest  neg- 
l^M't.  Such  responsibility  attaches  to  all  ]»ersons  eii- 
^(aged  in  employments  where  human  l)eings  submit 
their  bodies  to  their  control,  by  which  tlieli*  lives  or 
limbs  ar'  put  at  hazai-d,  or  where  such  employment 
is  att'Mided  with  danger  to  life  or  lind>.  The  utmost 
care  and  diligence  niust  be  used  by  persons  engage*! 
in  sn(di  employmc'.ls,  to  avoid  inj\ii'y  (<»  those  they 
cariw.  TIh'  cac  and  diliticnce  re(p'ie(|  is  pi-ojxtr- 
tioned  to  the  d.'.iigei"  to  the  ])erson  cari'ie*!.  In  projuu'- 
tion  to  the  decree  (if  danger  to  others,  must  l»e  t lie  care 


1  Trendwcll  f.  Wliittiir,  jt»/irn;  (iooil. 
fell  r.T;iylor, 41  Minn.  .7;ir,Am.  St.  Uep. 
700;  12  .V.  \V.  Hep.  87.1 ;  Si.itlnck  '•  Hand, 
142  Muss,  b,?;  7  N.  R.  Kt'p.  4.<;  oberfi-l- 
(Icr  r.  Doran,  26  Neb.  118;  41  N.  W.  Kep. 
1004. 

s  TreftdwoU  r.  Whittier,  «Mprrt. 

*  Tri'nihvell  f.  Wliitlii  r,  supra;  Knod- 
K>n  f,  Tiijlor,  lupra.    Soo  lluoy  v.  (iah- 

534 


lenlicck,  121  I'n.  St.  ZtH;  15  Atl.  liep.  MO. 

•t  O'Hrien  c.  West  Steel  Co.,  KiO  Mo. 
1H2;  H  .\iii.  St.  Ucp.  .VW;  l.S  S.  W.  K('|). 
40?  Donovan  r.  Cay.'.iT  Mo.  440;  il  s.  W. 
;{<'p.  44;  Itier  r.  siniul.ircl  Mairf'n  Co., 
lao  I'a.  SI.  440;  Ifl  All.  I!i'|i.f,.l7;  Oavidcon 
t'.  Onvhlson,  40  >niin.  117;  <M  N.  W.  Ucp. 
500;  T.awson  c.  Merrall.  .'.i  I1um,27S. 

•'■  ')  reailwell  r.  \Vlnltii.'r,  »T<;'r<i. 


CH.  XXI.] 


MODERN  AGENCIES. 


330 


'Ml- 

niiit 
or 
n(. 
us  I, 

c.V 
Mtr- 
or- 


and  diligence  to  be  exerciseil;  whore  the  danger  is 
great,  tlie  utmost  care  awd  dillgonce  must  be  em- 
ployed. In  such  cases,  the  law  requires  extraordinary 
care  and  diligence.  We  know  of  no  employment  where 
the  law  should  demand  a  higher  degree  of  care  and 
diligence,  than  in  the  case  of  persons  using  and  run- 
ning elevators  for  lifting  human  beings  from  one  level 
to  another.  The  danger  of  those  being  raised,  is  great. 
When  persons  are  injured  by  the  giving  way  of  the 
machinery,  the  hurt  is  always  serious,  frequently  fatal; 
and  the  law  shouhl,  and  does,  bl..d  persons  so  engaged, 
to  the  high(\st  degree  of  care  practicable  under  the 
circumstances.  It  wouhl  be  injustice  and  cruelty  to 
the  public  in  courts  to  abate  in  any  degree,  from  this 
high  degree  of  care.  The  aged,  the  helpless,  and  the 
intirm  are  daily  using  these  elevators.  The  owners 
make  profit  by  these  elevators,  or  use  +hem  for  the 
profit  they  bri  g.  The  cruelty  from  a  careless  use  of 
such  a  contriN  .mce,  is  likely  to  fall  on  the  v.eakest  of 
the  community.  All,  including  tlu'  strongest,  are  with- 
out the  means  of  self-protection  ui>(mi  tlu»  breaking 
down  of  the  machinery.  The  law,  therefore,  throws 
around  sucli  persons,  its  pro'ectioD,  by  requiring  the 
highest  care  and  diligence.-' 

§  330.     Postmasters  and  Mail  Carriers. — He  who 

carries  for  hire  or  gratuitously,  the  letter  of  an- 
other, is  a  bailee  for  hire  or  without  reward,  as  the 
case  may  be,  and  liable,  like  bai'  es  of  other  kinds 
of  chattels,  for  a  default  on  his  ]>art,  vchereby  the  let- 
ter is  lost;  but  as  the  posttdlice  department,  which,  in 
all  countries  does  almost  all  the  carrying  of  this  de- 
scription, is  a  branch  of  the  Government,  it  follows 
that  the  sufferer,  through  the  neglect  of  that  depart- 
ment is  practicallv  remediless,  for  the  reason  that  the 

535 


§  330 


MODEUN  A(iENCIE8. 


[part  IV. 


>    I 


a 


"11 


:3 


State  or  Govorninont.  is  not  liable  lo  an  miction  at  I  ho 
suit  of  a  private  jk'I'Sou.'  "Wiiciico,''  it  i^  t^aid  by  Mr. 
Schoulcr,-  "is  derived  this  exeeptional  resjMnisibility 
at  our  hiw  iiarrowlni;  down,  as  it  appears,  to  a  prac- 
tical iinimiiiity  from  tlie  eonscMiueiices  of  iiireless  trans- 
mission, where  property  is  I'eceived  in  biiilnienl  at  the 
postoftiee?  Not  from  any  mysterious  sijiiiilicance  at- 
tached to  the  business  itself,  wliicli  ini;^li!,  in  ;iny 
country  be  b'ft  to  private  individuals,  nor,  as  we  iippi-e- 
hend,  from  a  public  |>idi(y  wliiih  sin;^les  out  bailors 
of  this  class  as  specially  suitable  for  benrin;^  their  own 
losses.  It  conies  from  t  his  admitted  slate  of  ihinjis  in 
(Jreat  IJritain  and  the  I'nited  States:  that  };(ivernmenl 
carries  on  the  |»ost  <dlice;  and  the  sovereign  author- 
ity, on  broad  reasons  (d'  policy,  refuses  to  submit  its 
comiiict  (o  judicial  insi>ection,  or  to  i-espon-'  to  the 
suit  of  any  private  individual.  The  bailor  who  suf- 
fers from  maladministration,  may  have  absti'act  ri;^lit 
on  his  side;  but  the  courts  ai'e  shut  to  him,  and  conse- 
quently his  le;;al  injury  is  without  the  means  of  i-e- 
dress.  As  for  the  individual  pos' master,  he  is  but  a 
public  aj^cnl,  or  servant  of  the  Liovernmeiii,  an<l  under 
the  usual  rul(>s  <d"  agency,  should  not  answer  pt'rsonally 
for  the  merely  careless  perioi-niance  of  his  master's 
business."  The  (»idy  safeguard  and  se<-urity  for  the 
safe  ti'ansmis>  ion  of  |>acka;ies  by  mail,  is  that  which  i.s 
thi'own  ar»»und  it  by  the  reiiulatiouK  of  i  hf  jniv- 
ernment,  which  aniiomicc  ihat  all  xaluabu-^  sent 
by  Uiail,  shall  be  at  iIk-  risk  of  iln-  owner-.  All  that 
the  jn'overnnii'Ut  priunises,  in  case  of  loss  of  money  (»r 
other  valuables  fr(t>n  the  mail,  is  to  endeavor  to  re- 
cover them  and  U>  puiiisli  the  olTeud<i-.' 


\ 


I  I.awK.  <'onlr.,  §  11'.'. 
«  H«!l.  §  .'TO. 

53(5 


»  KoRtur  1.  Melt).,  M   Mus.  77;  M\  Aiii. 
Uup.  &U4. 


OH.  XXI.] 


MonKKN  AOKNOIKS. 


§  3B(> 


l«i    Am. 


Tlicn'foro,  tlio  Postnuistor-Cifnoral,  iv)stma8toiv'  and 
contratlors  for  cariwinj;-  the  mail,'"  an-  iini   lialilc  for 
losses  occasioiu'd  by  their  aj^ctUs,  clerks  and  servants 
t'inpl(»ye(l  under  tin  ni,  unless  tliey  have  bi'cn  ;^uilly  of 
nej^lijience  in   not    select in<i'  pei-sons  of  suilaltle  skill, 
or  in  not  exercisinji'  a  i-easoiialth'  superintendence  ov(>r 
their  acts  and  eoinrnct.''     In  (he  leading-  lOn^lisli  case/ 
the    action    was    aj;ainst     the    Postnuister-deneral    of 
Kn;;land,  for  ne-^Iij^ence  in  the  execiitiun  nf  his  olVice, 
by  which  a  letter  containing''  diners  exche<piei'  hills  of 
the  plaiutilT,  heiniv  delivered  into  the  olVice  at  London, 
lo  be  sent   by  post    to   Worcester,   was  opened   in  the 
ottlce,  and  the  exi  hecpiei"  bills  enclosed,  takt  ii  away. 
It  a|>peare«l,  in  a  special  verdict,  that   a   letter  cd'  the 
plaintilT's,   containing;  eij;ht   exche(|in'r  bills,   was  de- 
posited   in    the   |>osi    ollicc    ill    London,   which    was  in 
chai'i^e    of    the    defendant's    ileputy,    and    the    letter 
opened  in  theolVici',  by  some  iteisoii  unknown,  and  the 
bills  taken  awa,  .     It  was  held  by  three  jndiies,  a;;aiiisl 
an  (daboraie  di^sentinji;  opinion  of  Loril  ll(dt,  that  the 
«lelendant    was   not    liable  for  the  defanlt^  of  tjie  of- 
ticial  and  a^icnts  of  tic  pest<dUce,  on  the  ;;roniid  that 
the  pKstollice  was  an  in^^litnliim  of  ;;'iverninent,  estab- 

lishe<l  and  re^iilat<'»l  by  law;  that  all  tl IVicers  and 

ajicnts  of  tlie  jJostotVice  were  ollicers  and  a;;ents  of  the 
jiovernnieui ,  and  not  the  ap  iits  ai'd  seivants  of  tin* 
posiniaster;  that  mo  contract  was  made  ity  the  post- 
master, or  any  ottieer  o;-  a^cni  (d'  the  postollice,      itli 


I  Ki'c  iHn  f,  Son  III  worth,  on  Mnxt.  i"i  ; 
14  Am.  C«|>.  )ir<;  l>uiilii|<  i  Moiiruu,  7 
eriUKli  'iiJ;  M'liriiyi'r  t-.  I.>iicli.  "i  SViiltii. 
4A.I;  Itikliiip  I  WilliiimNon.U  Koirf.  <■).',; 
WI){Kti>»  <'.  HatliHwny.n  |l:irli.  )i.'*J :  llnlan 
v.  \Villi;iiii»i>i\,  I  Hri'v.  ISi  ,  Moxwrll  i- 
Mcnvoy.'J  I'llib  'ill:  Uiiniiiim  r.  (iiiiid 
cliH<l..'<  Will  ,411. 

•.'  I'oslori    Mctl»,  .%5  M'-M    77,  ;tii  Am. 
Brp.  bun;  UuicliluK   i.   ISnicketl,  ii  N. 


n  r.'J;.V1  .Vm.  inc.  JIS;  (  «iit.  U.  Co.  V. 
|jim|.lf\,7il  Al«.  ;r,7;  M  Am.  Ittr.  .tJM. 
Coiitrii.  .><ii\vynr  I.  Cci-«e,  17  (ir»lt,  ;'«; 
■.It   \iii.  Dir.  ll.'i. 

■'1  KiikliT  r.  .Miitt.M,  KM;)rn. 

<  l.mn'  r.  Ccllon,  I  !,<!  UHT  tl4«;  Ii 
.Mi"t  «:•-•,  1  Kalk.  17  (ITiil),  li.llowi-il  iu 
Wiiitili'lil  V,  Lord  {a;  Ue^poiicer.i  Cowp. 
7.-.4(l77M). 

M7 


CO 


;p:; 
:3 


§  3fl0 


MODERN  AGENCIES. 


[part  ir. 


those  who  use  the  public  accommodation  of  the  office; 
that  each  officer  and  agent  Avas  liable,  in  a  proper  form 
of  action,  to  any  individual  who  had  suffeixnl  by  his 
neglect  of  duty;  but  that  no  officer  or  agent  was  liable 
for  the  default  of  anot'ier.''  Tn  the  leading  case  in 
this  country — the  action  being  brought  against  a  mail 
cairier — the  court  say:  "The  package  of  bank  bills,  in 
this  cnse,  cam.e  into  the  possession  of  defendants  as 
mail  contractors,  and  the  duty  of  transportation  re- 
sulted from  that  capacity.  Common  carriers  are  ])er- 
sous  who  carry  for  hire;  their  obligation  is  only  to  the 
person  with  whom  they  have  contract od  to  carry. 
Their  duties  and  responsibilities  arise  from  fee  and  re- 
ward, and  they  are  liable  only  to  persims  in  privity 
of  contract.  A  mail  carrier  has  no  contract  with  those 
who  transmit  articles  by  the  ]>ublic  mail,  he  receives 
no  fee  or  reward  from  them.  Jlis  contract  is  with  the 
Government  of  the  Ignited  States,  for  the  ])erformance 
of  acts  in  execution  of  a  public  function.  He  is  re- 
munerated by  the  (lovernment.  The  duty  he  takes 
ui)on  himself  by  the  contract,  he  is  sworn  to  jierform. 
He  acts  for  the  general  (lovernment,  in  the  j)errorm- 
ance  of  a  function,  which  the  (jovernment  is  charged 
to  have  executed.  So  far,  then,  as  the  transmission  of 
mail  is  concei'iied,  a  mail  contractor  is  a  public  agcMit, 
and,  as  such  only,  rc\s])oiisil>le.  The  rules  apjtlicable 
to  public  ard  j>rivate  agencies,  are  dilTerent.  All 
agents,  of  whatever  character,  ar«'  i'esjxtnsible  for  all 
acts  of  misfeasance,  and  Avillful  wrong.  A  ]»iivate 
agent  is  not  res]»onsible  to  the  party  injurcMl,  for  his 
acts  of  mere  negligence  or  omission,  but  his  principal, 
only.  Public  agents  are  regarded  as  ])rincipals,  for 
the  i)urpo'M,>  of  respotislbility,  and  are  liable  to  all  per- 
sons injured  by  their  negligence  or  omission,  as  well 
as  by  their  acts  of  misfeasance.  If  this  were  not  the 
538 


I 

i 


en.  XXI.] 


MODERN  AQKNCIES. 


§330 


orm. 

fol'Ml- 

oil  of 

H(Mlt, 

•ahlo 

All 

.!•  all 

•ivjite 

>i'  his 

cipal, 

,  for 

]»('r- 

wcll 

(t  the 


case,  the  injured  party  would  bo  without  redress,  as 
the  Governnu'ut  can  not  be  prcsunicd  to  indemnify  the 
public  at  larjuje  af^ainst  the  wrongful  and  ne«;li<j;«'nt  acts 
of  subordinate  otticcrs  or  ap'nts.  r.ut  ])iibli«'  ajrentM, 
althousli  in  one  sonsc  treated  as  ])rlii(ij)als,  are  not  re- 
sponsible  for  the  omissions,  m'«ilii;<'iif(',  or  misfeasance 
of  tho.se  employed  under  them,  if  they  have  employeil 
trustworthy  ])ersons  of  suitai)le  skill  an4l  ability,  and 
liave  not  co-optM'ated  in  the  wronj;'.  Hence,  the  de- 
fend'antK  bein}>;  i»ublic  aj^ents,  tliey  are  not  res]K»!isibl(^ 
for  the  los*;  aeerninj»;  by  the  nejilijicnce,  oi-  misfeasance, 
of  tliH'  drivers.'" 

Each  is  liable,  however,  for  his  own  ne;'li<;ence,-'  foi' 
it  is  a  well  estiibjished  rule  that  whenever  a  jx'rson 
has  suffered  an  injury  fr(un  the  ne|;li<i;ence  or  unskill- 
fulness  of  a  public  officer  actin*;'  ministej-ially,  an  ac- 
tion for  damajics  li«'s  against  snch  ollicer  on  the  part 
of  the  party  injured.-'  The  fad  that  the  defendant 
contracts  to  faithfully  ]>erfon  i  the  duties  of  his  olhce, 
with  the  jidvcrnment  and  n(»t  with  the  person  injured, 
is  no  <lef«'nse  to  the  action,  as  it  is  not  bron;iht  up(»n 
the  contract,  but.  upon  ihe  breach  of  duty.'  TInis,  a 
p()stmasl<'r  has  been  held  liable  whei'e  he  kept  his  of- 
fice in  anolle'r's  store,  and  the  servants  of  the  latter 
had  free  access  to  the  letters  and  mail  malti'r;''  where 
he  permit te<l  a  person  who  was  n<»t  a  d'.dy  appointed 
deputy,  and  sworn  in  according  to  law,  to  handle  the 


1  Connell  r.  Voorhees,  13  Ohio  6'.!H;  ii 
Am.  lice.  2116. 

2  Diiiiforlli  r.  (Jrnnt,  U  Vt.  '28.1;  SO  Am. 
Dec.  m,  or  for  rclufin^  to  dellvi'v  a  let- 
ter. T.all  I.  KtMtoii,  1  N.  \.'i:r,;  411  Am. 
Dec.  :t52:  I'.'  IJow.  284. 

:'  Wliiirttm  Agency,  sec.  547;  Story 
AKcn<'y,.'120,  ;i21;a  Keul.iiKi;  Komlall  c. 
Stokos,;!  Mow.  (C.  S.)  87;  Tylfr  r.  M 
fred,  38  Me.  .^li);  Nowell  r.  WriK'I't,  3  .\l 
Icii.iriG;  HiirtU'tt  v.  ("rozier,  17  .lohns. 
449;  8  Am.  Dec.  428;  AUsit  i-.  nracly,4 


mil,  eaO;  40  Am.  Dec.  305;  Kobintion  t'. 
Cliamherlain,  34  N.  V.  .W.l  Hoover  r. 
Hiirkhoof,  44  N.  V.  113;  Sawyer  f.  Corse, 
17  (iratt.  230;  Kennaril  i'.  Willmorc,  3 
Ueink.  f,l'.», 

4  Ileiilev  !•.  Mayor,  5  Itiiijf.  !)1 ;  Ilnruoit 
V.  Lynch, 5  U.&C.,5()!i;  !"»irrantr.  IlatnoB, 
11  (;.  It.  (N..S.)  553;  UohiiiRon  v.  (Jham- 
berlain,  34  N.  V.  .189;  Fulton  F.  I.  Oo.  v. 
]laM\viii,37  N.  V.  i,48, 

•■  KorJ  c.  I'ark'  r,  4  Ohio  8t.  820. 

530 


§330 


MODERN  AGENCIES. 


[part  IV. 


•rj 

CO 


mails;'  where  receiving  a  letter  to  be  sent  registered, 
lie  «ent  it  unrcglst'cnHl,-  the  court  twiying  in  the  AUi- 
bania  case:"'  "The  cxcmxition  from  liability  of  the  post- 
master for  the  .l('fanlt^!  and  misfeasance  of  lii.s  clcil^ 
andsub-assistant.s,  Ls available  to  theixistmaster  only  iu 
etjscs  where  Ntich  clerks  or  snb-as.siwtiant««!  ar4'  ai»point('(l 
in  i)iirsuance  of  some  law  expressly  airthorizing  it,  so 
that  by  virtue  of  thi'  law  and  tlie  appointment  the  ap- 
I)ointees  become  in  some  sort  public  otlicers  themselves. 
The  rules  and  regulations  of  the  postollice  depart nuMit 
prn\  ide  for  emjdoyment  of  clerks  and  assistants,  when 
necessary  for  a  proper  an<l  spee<ly  discharge  of  tht^ 
business  of  the  ollice;  and,  when  made  in  jtursuauce  of 
such  rules  and  regiilatious,  it  may  In-  the  postmaster 
himsidf  is  not  responsible  for  the  defaults  of  his  clerks 
.md  assistants,  unless,  under  proper  averments,  it  be 
shown  there  was  negligence  in  their  selection  or  super- 
intendence, as  we  have  stated  above,  ruder  the  view 
we  take  of  the  evidence,  these  princi|)les  do  not  neces- 
sarily control  the  ]»resent  case.  A  postmaster  who  em- 
ploys a  clerk  or  assistant,  independent  of  exjjress  au- 
thority, and  who  is  j>aid  b\  iiim  out  of  his  own  salary 
or  nu'ans,  is  liable  for  the  default  or  misfeasanc<*  of 
his  clerk  or  assistant,  as  any  private  person  would  be 
for  tne  acts  of  his  agent  or  employe.  The  doctrine  of 
res])()ndeat  sujierior  applies  in  such  cases.'' 


I  Itixhop  f.  Willianisnn,  2  Fairf.  4t»; 
llolan  ('.  Williikinson,  I  Hrev.  IM  ;  Cole- 
man c.  Fraziur,  4   Uicli.  L.   145;  63  <Vni. 


Dec.  727;    Uaislcr   r.  ("iver,  12  Soatli. 
Itep.  23H  (Ala    . 

'^  Kii/Kerald   r.  Hiirrell,  106  MasB.  44ti. 

»  ItaUlvr  V.  OliVLT,  tupra. 


640 


DIVISION  III. 

QUESTIONS  OF  PROOF  AND  DAMAGE. 


041 


"11 


rr 


CHAPTER  XXII. 

KVIDENCE. 

Srctiun  331.  Introductory, 

332.  Hurilun  of  Proof. —Ordirmry  lUilments. 

333.  Hunltii  of  I'roof— Innkcopfii. 

334.  Hunlfii  of  I'roof— Common  Carriers  of  Goods. 

335.  Proof  of  tlio  Contract. 

330.  yuiintuin  of  Proof  l{e<iulred. 

337.  Proof  tliiit  LosH  witliin  Kxcopted  Causes. 

a3.s.  lUinicn  of  Proof  as  to  NetillKcnce. 

331».  HunU'ii  of  Proof  under  H|u'cial  Cin-timstances. 

340.  Common  Carrier.s   of  Passcntjers.— IJurdcu  of   Proof  of 

Ni'nWiU'ncii. 

341.  Hurdcii  of  Proof  of  Contributory  Negligence. 

342.  Hunlfri  of  ['roof.— TcleKrapli  Comi)anies. 

343.  Hurden  of  Proof— Sleeping  Car  Companies. 

§  331.  Iiitroiliictory.  — The  question  (in  actions 
against  ordinary  bailees,  as  well  as  against  common 
carriers  and  other  exce])fional  bailees),  of  the  hiinloi  of 
proof  as  to  the  vaiisr  of  (lir  loss  or  injury  and  as  to  nnjli- 
fjcncr  or  varr  on  thv  part  of  the  haihr,  is  an  imi)ortant  one, 
as  in  very  many  cases  the  real  cause  may  be  diflicult 
or  impossible  to  ascertain. 

§  33'J.     Burden  of  Proof  .—Ordinary  Bailments.— 

As  the  law  will  not  presume  negligence  on  the  [tart  of 
a  bailee,  who  Avill  be  reganU'd  as  having  acteil  accord- 
ing to  his  trust  until  the  contrary  is  shown,  it  has  been 
sometimes  said  that  the  bui'den  of  proof  is  upon  the 
bailor  to  show  that  the  loss  of  his  goods,  or  their  dam- 
age while  in  tlie  bail(H''s  hands,  arose  from  the  bailee'.s 
neglect.*     But  such  a  rule,  if  applied  to  most  cases  of 


1  Gilbart  v.  Dale,  6  Ad.  A  K.  64.3 ;  Mid- 
land U.  Co.  f.  Hroinloy,  17  Com.  H.372; 
Pnttf.  R.  Co.,  11  Com.  II.  HO;  Kinncanu 
r.  Small, 1  U-p-  315;  Rauyan  v.  Caldwell, 


7  Hiiinph.  184;  IJrown  r.  Johnson,  29 
Tex.  40;  (!ross  f.  Mrown,41  N.  II.  28.3; 
Lniiil)  r.  U.  Co.,7  A1I*ti,>,is;  Smith  f.  First 
Nat,  Unnk, 'JOMdBB.  COS;  ^1  Am.  Dec.  09. 

r)43 


I!* 


§332 


EVIDENCE. 


[DIV.  III. 


r- 


injury  to,  or  loss  of  bnil('<l  cluittolfl,  would  leave  Iho 
bailor  practitall.v  rciMnlilcss,  ln'causc,  hcinjj;  in  tlic  \)oh- 
session,  an<l  unticr  t  lie  ovcrsi^Iit  (»f  tlio  bailee,  and  away 
fro!n  thai  (»('  llie  bailor,  il  would  be  impossible  for  the 
bailee  to  know  in  what  way  or  under  what  circuni- 
stauces  they  hail  sulTered  daniaj;e.  Therefore,  il  is 
now  well  settled  that : 

1.  The  bailoi*  in  t.he  first  instance,  must,  prove 
the  eontraci  of  bailment  and  the  (bdivery  of  the  goods 
to  the  bailee. 

2.  If  he  then  proves  that  tlio  floods  have  not  been 
returned  to  him,  or  have  been  returned  in  a  dania;;('d 
eondition,  ituili  be  jtresumed  that  this  arose  from  the 
ne«;li;;'ence  of  the  bailee,  if,  after  this  pi-oof,  he  refuses 
to  account  for,  or  explain  the  cause  of  the  loss  or  daia- 
a<;e,'  or  if  the  explanation  ho  gives  show.s  a  loss  op 
injury  of  a  kind  which  does  not  ordinarily  occur 
without  negli^^ence  on  the  part  of  the  custodian.-  lu 
the  case  of  a  p,raluit(Mis  loan,  if  il  be  sli(»wii 
that  the  borrower  has  failed  to  return  the  chat- 
tel lent  to  Mini,  acc(U*din;;  to  pi'omise,  lie  is 
prima  June  liable;  and  the  burden  will  then  rest 
upon  him,  of  slutwinn  a  loss  without  any  fault 
of  liis.^  Where  a  sjiecial  depot^il  of  property  for 
gratuitous  saf(>-keeping  was  made  with  a  bank,  which, 
thi'ough  its  cashier,  issu<'d  a  receipt  for  the  property, 
specifying  that  the  same  was  held  subject  to  the  order 


I  I.ngnn  r.  Mntlhrws.fi  T'n.  St.  117  : 1?oio8 
V.  li.  Co.,  ^~  ((iiiii.  '2TJ;  McllMiinls  v. 
I{ol)ins(in.2fi  Vt.  .Sir,;f,2  .Am.  Dec.  ri74 ; 
KutikhouHcr  r.  Wafjiior,  l','.'  111.,'iit;  (iood- 
fellciw  V.  M("i!s;an,  A'i  Mr),  'jso  ;  Iti'mu'll  r. 
O'lti  it'll,  :i7  ni.2.'.n;  Fonl  r.  Sjiiiuions,  l:t 
l.a.  .\iin.  3!i7;  Wist  t-.  ("Iii-slcy,  r,.t  Mo. 
U'\  Collins  r.  lieiinclt,  4f!  N.  V.  VM; 
Cninins  r.  Wood,  41  111.  4ir. ;  m  Am.  Dec. 
180;  CiiKS  r.  K.  Co.,  U  .\llcn,448;  distin- 
gniBhinK  I.«mb  r.  K.  Co.,  7  Allen,  98;  U. 
S.  f.  VnkprH,  r,o  Fed.  Kep.  641. 

544 


■;  Collins  1'.  Iionnctl,  40  N.  V.  4110 ;  Ar- 
nol  c.  Ilriiconnicr,  14  IM  .  (App.);  Wint- 
rinKliam  r.  lliiyes,S8  ;  .  K.  Hep. '.".i!)  (N. 
v.).  A  trunk,  for  cxiimple,  IK  li'fl  with 
K  on  slorajic  When  il  ih  riuirnc!!  the 
contents  are  wntcrfioaked  anil  mil- 
ilcweil.  Tliir4  cai'ri(!s  a  prpsumption  of 
ucgliKcnci'.   Uoed  i\  Crowe,  13  Daly,  IG4. 

■1  Kdw.  Hail.,  175;  Diivnl  c.  Moskcr.R 
Johns.  445. 


ClI.  XXII.] 


KVIDENCR. 


§332 


m :  Ar- 
)■■  Wint- 
>.  '/.".>  (N. 
I'fl  witli 
in:';!  the 
ml  niil- 
Iptlnll  of 
)nl.v,  Ifil. 
osker,  8 


of  the  tlopositor,  tho  cusIiUt  boiii"  diilv  authorized  to 
issuo  such  receipt,  iu  an  action  by  tin-  (h-positor  ajiainst 
tho  bank  for  tho  value  of  tho  proporly  so  dopositod,  It 
was  hohl  that  a  prima  facio  caso  for  tho  phiinlilT  was 
nuido  out  by  introducinj;  tlio  I'ocoipl  in  oyidonco,  and 
proving;  a  failuro  to  dcliyor  to  tho  plainlilT  lui  liis  de- 
mand, tlio  property  tlicroin  described,  and  tlie  burden 
^yas  tlius  cast  upon  tlie  (bd'endant  of  slio\yin;;  it  liad  ex- 
ercised, at  h'ast,  sli^lil.  diligence  in  the  cai'e  and  ivoep- 
in<;  of  the  jn'operty.'  If  tlie  pledgee  failw  to  return  the 
pledj;o  as  ajireed,  or  returns  it  in  a  bad  order,  a  i>re- 
sumption  arises  \yhich  re(|uii'es  him  at  least  to  satis- 
factorily explain  the  I'eason  of  the  loss  or  injury.'  So, 
\yhere  a  pledj^ce  fails  to  (hdiyer  the  ]ded;^e  u]»on  a 
projter  <leniand,  the  bunlen  of  accounting  for  it  is 
throNvn  upon  him.'' 

The  (pioMtion.s  jn  thi.s  section  arose  in  a  recent  cano 
in  Ponnsylyania,'  ^vllero  the  fads  were  as  follows: 
The  plainlilT,  with  his  Ayife,  yisited  the  cIotliiu«;  store 
of  the  defendants  for  the  jiurpose  of  jjurchasing  a  suit 
of  (lothes.  Haying  selected  a  coat  and  vest,  and  wish- 
ing to  try  them  on,  he  to(dc  olT  his  watch  and  chain, 
and  was  about  to  lay  the  watch  on  a  jiile  of  clothing, 
wlien  the  saU-sman  who  was  wailing  on  him  said:  "Vou 
had  better  put  your  Avatih  here,"  indicating  a  drawer 
from  Ayhich  the  vest  had  been  taki'u,  and  adding:  "It 
will  be  safe,  I  guess."  The  watch  niid  chain  were  ac- 
cordingly put  iu  the  drawer,  and  the  drawer  Avas  «losed 
by  the  sah'sman.  The  plaint! IT,  his  wife,  ami  the  Nales- 
man,  then  went  to  another  jiart  of  the  store,  \yhei'e 
there  was  a  mirror,  and  the  coat  and  vest,  having  been 
tried  on,  were  found  to  be  satisfact(»ry.       They  next 


1  Merchants'  Nat.  Hk.  -.  Caitiart,  22  S, 
K.  Ucp.  6VH  ((ia.)- 

2  Schoiil.    Hail.,    §l',t'2;   Story    nail., 

86 


§3.W;  Crocker  i\  Monro8e,   18  Ij>.  863; 
;!(•>  .\m.  l>fC.  I'M. 

:i  Kihv.  Iliiil.,2'Ji!. 

*  Wooihutr  I.  Painter,  24  Atl.  Rep. 621. 

545 


^>, 


^J^, 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


[/. 


z 


1.0 


I.I 


1.25 


I^IM    |2.5 
■^  1^    12.2 


L£    II  2.0 


1.8 


14  mil  1.6 


V] 


<^ 


/i 


"^  JfJ 


/ 


/A 


"^^  '^W 


V 


Photographic 

Sciences 

Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


l/u 


ffjf^^^^ 


§332 


EVIDENCE. 


[DIV.  III. 


>    I 


CO 


CO 


r- 


;;3;; 

2,r 


turned  their  attention  to  the  selection  of  a  pair  of  panta- 
loons, in  doing  Avhich  the  plaintiff  went  twice  to  a 
dressing  room  connected  with  the  store.  While  he  was 
thus  engaged  in  trying  on  the  pantaloons,  the  salesman 
conducted  his  wife  to  a  seat  some  distance  from  the 
drawer  ir:  which  the  watch  and  chain  had  been  placed, 
and  to  1  vicinity  of  which  she  had  returned  after  the 
coat  and  •. .  t  bad  been  selected,  and  there  entertained 
her  durirj;'  the  time  her  husband  was  in  the  dressing 
room.  >^'  en  the  entire  suit  had  been  selected,  and 
the  plaintilJE  bad  replaced  the  garments  which  he  wore 
when  entering  the  store,  he  said  to  the  salesman,  "Now 
we  will  take  the  watcli."  The  salesman  opened  the 
drawer  in  which  it  had  been  ])lacc(l,  but  it  was  not 
there.  Several  persons  who  had  been  in  the  store  dur- 
ing tiie  selection  of  the  suit,  but  who  had  left,  were 
sent  for  and  questioned  by  one  of  the  defendants,  but 
the  vatch  and  chain  were  not  found  nor  returned  to 
the  plaintiff.  AVliile  search  was  being  made  for  the 
watch,  the  plaintiff  asked  the  salesman  whether  they 
were  in  the  habit  of  putting  things  like  it  in  the 
drawers,  and  he  replied  that  they  had  done  so  nuiny 
times,  and  nothing  of  the  kind  had  happened  before. 
Having  paid  for  the  suit  purchased,  the  plaintiff  asked 
one  of  the  defendants  whether  he  thought  it  was  right 
that  he,  th(»  plaintiff,  should  lose  tlie  Avatch.  The  reply 
was  that  he  Avould  have  to  lose  it,  but  the  defendants 
would  do  all  they  could  to  assist  him  in  tinding  it.  The 
watch  was  not  returned  to  the  plaintiff.  The  trial 
court  on  these  facts  non-suited  the  plaintiff.  On  appeal 
to  the  Supreme  Court,  its  action  was  reversed,  that 
Court  holding  that  the  storekeei)er  was  a  bailee  for 
hire,  the  deposit  of  the  watch  being  an  incident  to  the 
business,  and  therefore  beneficial  to  him;'  and,  that  he 

I  Ante,  citinj?   Unrwell    r.   Stern,    IL'2       itif;:    "  Miinifestly    the    bailment,   in   a 
N.   Y.  u3!t;  25  N.  IC.  Hep.  'Jio,  and  suy-       euse  lilse  llie  present,  ia  of  the  latter 

040 


r 


■^p 


CII.  XXII.] 


EVIDENCE. 


§333 


should  iiave  been  called  on  to  explain  the  loss  to 
the  jury,  saj-ing:  "The  remaining  question  is,  whether, 
upon  the  assumption  that  there  was  a  bailment  for 
hire,  proof  of  failure  of  the  defeiwlants  to  return  the 
watch  and  chain  upon  demand  was,  under  the  circum- 
stances, sufficient  to  carry  the  case  to  the  juvy.  If 
what  was  said  by  the  plaintiff  should  be  taken  as  proof 
that  the  property  was  lost,  we  would  be  met  with  a 
conflict  of  authority  elsewhere  as  to  the  effect  of  it,  and 
find  little  in  our  own  books  to  help  us  determine 
whether  the  burden  was  upon  the  plaintiff  to  jirove 
negligence,  or  upon  the  defendants  to  repel  the  infer- 
euce  of  it.  But  the  plaintiff's  evidence  amounts  to 
no  more  than  thac  the  salesman  examined  the  drawer 
in  Avhich  the  Avatch  had  been  placed,  and  so:ie  others, 
and  did  not  find  it,  and  that  several  i)ersons,  not  em- 
ployes of  the  defendants,  who  had  been  in  the  store 
and  left,  were  sent  for  and  interrogated,  without  re- 
sult. All  this  did  not  prove  a  loss,  nor  even  that  the 
defendants  said  the  watch  was  lost  or  had  b(M>u  stolen. 
In  IjQfjan  v.  Ma  theirs,^  it  was  held  that  if  a  bailee  for 
hire  return  the  i)roperty  in  a  damaged  state,  and  give 
no  explanation  how  the  injury  happened,  the  burden  of 
proof  to  show  that  there  was  no  negligence,  is  upon 
him.  In  harmony  with  this  judgment,  a  bailee  who 
fails  to  give  any  such  explanation  of  his  neglect  to 
restore  the  projierty  intrusted  to  him  as  will  enable 
the  bailor  to  test  his  good  faith,  ought  to  be  held  to 
proof  that  he  has  exercised  ordinary  diligence  in  the 
care  of  it.  Doubtless  the  defendants  were  entitled  to 
the  benefit  of  any  inferences  fairly  deducible  from  their 
conduct  when  the  watch  was  <lemanded,  but  such  in- 


olasB  (a  bailment  for  hire),  for,  while 
the  cuHtomer  i),iys  nothing  directly,  or 
eo  nomine,  for  the  safc-koepinK  of  his 
effects,  the  dealer  receives  hisrecom- 


pense  in  the    profits  of    the    trade  of 
which  the  bailment  is  a  necessary  inci- 
dent."   See  atite  §  31. 
1  6  I'a.  St.  417. 

547 


i    I 


III 


§334 


EVIDENCE. 


[DIV.  III. 


CO 


:£■: 


ferences  were  for  the  jiirj-.  If  the  case  had  been  sub- 
mitted to  them,  and  they  had  found,  as  an  inference 
from  the  facts  proved,  that  the  watch  had  been  stolen, 
such  finding  would  have  bctn  a  complete  exculpation, 
unless  they  further  found  that  the  defendants  had  not 
exercised  ordinary  care." 

3.  Where,  however,  the  bailee's  explanation  satisfac- 
torily explains  the  loss,  and  shows  no  want  of  care  on 
his  part,  and  there  is  no  proof  by  the  bailor  from  which 
negligence  can  be  inferretl,  the  defendant  is  entitled  to 
a  non-suit.^ 

§333.  Inn-keepers. — It  being  proved  that  the 
goods  were  delivered  to  the  inn-keeper,  and  that  they 
have  not  been  returned,  or  have  been  returned  in  a 
damaged  condition,  the  burden  of  proving  a  legal  ex- 
cuse is  upon  the  defendant.- 

§  334.  Common  Carriers  of  Goods.  — In  the  car- 
riage of  goods,  the  shipper  or  owner  makes  out  his 
case  by  proving  their  receipt  by  the  carrier,  and  their 
Don-delivery,  sufficient  time  having  elapsed  for  them 
to  arrive  at  their  destination,  or  their  delivery  in  a 
damaged  condition.  This  is  enough;  the  carrier  must 
now  show  that  they  were  lost  or  damaged  tlmnigh 
some  cause  for  which  he  is  not  by  law  responsible.' 


1  Coleman  v.  Livingston,  45  How.  Pr. 
483;  Willettf.  Uicti,H2  MiiS8.35G;  57  Am. 
Rep.  684;  7  N.  K.  Rep.  776. 

2  Piper  V.  Manny,  21  Wend.  282;  Hill  r. 
Owen,  5  Hl.ickt.  H'ii;  35  ;.  n.  Dec.  124; 
Schonl.  IJail.  §§271,272;  Kppsr  Hinds, 
27  Mies.  657;  6  Am.  Dec.  5'28;  Wiser 
r.  Chesley,  63  Mo.  547;  Newson  v. 
Axon,  1  McCord,  509;  10  Am.  Dec.  686; 
Uiird  V.  Eichold,  10  Ind.  212 ;  71  Am.  Dec. 
323;  McPaniels  v.  Robinson,  26  Vt. 
BIO;    62   Am.  Dec.  574. 

3  Nelson  v.  Woodmff,   1  Black,   156; 

548 


Hunt  f.  The  Cleveland,  6  McLean,  76; 
Hearse  v.  Hopes,  1  Spra^ne,  SM  ;  Kerr  r. 
The  Norman,  1  Newb.  Adm.  !)2'>;  Wolf  v, 
American  Kxpress  Co.,  4.H  Mo.  421;  97 
Am.  Dec.  406;  Lovoring  v.  Union  etc. 
Trans.  Co.,  42  Mo.  88;  97  Am.  Dec.  320; 
(jirogan  i'.  Adams  Kxpress  Co.,  114  Pa. 
St.  523;  60  Am.  Rep.  .SfiO;  Chapman  v.K. 
Co.,  21  La.  Ann.  224;  99  Am.  Dec.  722; 
Slienk  V.  I'hila.  Steam  Co.,  60  Pa.  St.  109; 
100  Am.  Dec.  541;  Adams  Kx.  Co.  c  Stett- 
anars,  61  111.  184;  Atchison  etc.  K,  Co.  v. 
Rrevver,  20  Kas.  669;  Holes  v.  B.  Co.,  37 
Conn.  272. 


r 


warn 


mmmmmammggmsi^ 


CH.  XXII.] 


EVIDENCE. 


§  336 


§  335.  Proof  of  the  Contract.r-The  common  car- 
rier who  alleges  that  there  is  a  contract  between  him 
and  the  customer  limiting  his  common  law  liability, 
has  the  burden  of  proving  such  a  contract.^  If  in  wTit- 
ing,  the  writing  must  be  shown;  if  oral,  he  must  give 
such  proof  as  is  ordinarily  required  to  establish  the 
making  of  an  agreement  by  word  or  mouth.- 

§  336.  Quantum  of  Proof  Required.  —Though  the 
case  of  carrier  and  customer  is  generally  treated  as 
one  where  the  i)arties  do  not,  in  the  making  of  their 
contracts,  stand  at  arm's  length,^  yet  the  courts  do  not 
seem,  in  the  proof  of  such  contracts,  to  have  applied 
the  rule  as  to  relations  fiduciary  or  confidential,  or 
where  one  is  not  able,  on  account  of  his  necessities  or 
position,  to  freely  contract,  viz.,  that  proof  of  the  po- 
sition of  the  parties  towards  each  other  raises  a  pre- 
sumption of  undue  influence,  which  throws  upon  the 
dominant  one,  the  burden  of  showing  that  the  contract 
was,  in  point  of  fact,  fair,  fully  understood  and  reason- 
able."* While  it  is  incumbent  on  the  carrier  to  show 
that  a  contract  containing  exemptions  in  his  favor,  Avas 
made  under  circumstances  indicating  fairness  and 
good  faith;  this  being  shown,  it  then  devolves  upon  the 
customer  to  show  that  it  ought  not  to  be  enforced 
against  him,  because  it  was  obtained  through  fraud 
or  undue  influence,  or  without  his  real  consent.'"' 

1  AVestern  Trans.  Co.  v.  NewliuU,  24       1017;  St.  Louis  etp.  1{.  Co.  v.  Lesser, 46 


lU.  it'll) ;  76  Am.  Dee.  760;  Gaines  r.  Union 
Tran8.  Co.,  28  Ohio  St.  418;  Adams  Kx. 
Co.  r.  Nock,  2  Duvall,  502;  87  Am.  Dec. 
510;  FiUcbiown  v.  R.  Co.,  55  JIo.  402;  92 
Am.  Dec.  606 ;  McMillan  v.  U.  Co.,  16  Jlicb. 
79;  93  Am.  Dec.  2U8;  Am.  Trans.  Co.  r. 
Moore,  5  Jlich,  36S;  Baltimore  'itc.  K.  Co. 
V.  Brady,  32  JId.  3;!3 ;  Soiilli.  Ex.  Co.  n 
Newby,  .^6  Ga.  635;  Verncr  v,  Sweitzcr, 
32  Pa.  St.  2(18;  Uosenfe'.U  r.  II.  Co.,  103 
Ind.  l.'l ;  53  Am.  llep.  500;  2  N.  E.  Ucp. 
iti;  Chicago  etc.  II.  Co.  v.  Abels,  00 Miss. 


Ark.  230;  Little  Kock  etc.  K.  Co.  v.  Tal- 
bot, 3'..tArk.  523;  Park  r.  Preston,  108  N. 
Y.  434;  15  N.  K.  Hop.  705;  McElwain  v. 
U.  Co.,  21  AVeek.  Dig.  21;  Schaeffer  v.  E. 
r  ..,31  All.  Kep.  1088  (Pa). 

2  Am.  Trans  Co.  v.  Moore,  wpra. 

■I  Ante  §  153. 

4  .'•eo  Lawson,  Contr.,  §  259  el  seq. 

5  Adams  Ex.  Co.  r.  Guthrie,  9  Hush.  78; 
South.  Ex.  Co.  V.  Urquhart,  52  Cia.  142; 
Louisville  cic.  11.  Co.  r.  IIedKer,9P.ush. 
645;  lioskowitz  v.  .Adams  Ex.  Co., 5 Cent. 

549 


T!=5a5S^-F 


r 


§  337 


EVIDENCE. 


[DIV.  III. 


C''3 


§  337.     Proof  that  Loss  within  Excepted  Causes. 

— The  bui'deii  of  i)i'oof  is  upon  the  carrier  not  only  to 
show  that  a  limiting?  contract  has  bee  '^  made,  but  also 
that  the  damacje  or  loss  in  question  arose  from  a  cause 
excepted  In  this  contract.^  And  this  fact  must  be  es- 
tablished with  reasonable  certainty,  and  not  rest  upon 
conjecture  or  possibility;  for  if  upon  the  whole  case 
it  is  doubtful  whether  the  loss  arose  from  an  excepted 
cause  or  through  the  negligence  or  want  of  skill  of 
the  carrier,  the  latter  will  have  to  bear  it.-  It  is  not 
enough  for  him  to  show  that  it  niif/lil  have  ..  iseu  from 
that  Ciiu.se;  he  must  prove  that  it  did;"*  and  whether  the 
loss  happened  through  an  excepted  cause  or  by  the 
negligence  of  the  carrier,  is  in  every  case  a  question 
for  the  jury.^  Where  goods  arrive  in  a  damaged  con- 
dition, and  it  is  apparent  that  the  damage  was  in  a 
great  part  caused  by  the  carrier's  fault,  though  to  some 
extent  would  probably  have  been  caused  by  the  perils 
of  the  sea  encountered  by  the  vessel,  but  to  Avhat  extent 


;:::» 


r- 

MMM 

3?: 


L.  J.  r-S ;  I,a«Tonce  i:  IJ.  Co.,  30  Conn.  63 ; 
unilor  Ihr!  Knglisli  statutes  tlio  biirdon 
of  sliowing  that  a  comlition  was  "just 
ati<l  ruasonablo"  is  ou  the  carrier;  I'eck 
V.  H.  Co.,  ion.  L.  Gas.  .173. 

1  The  Freedom,  L.  U.  3  1'.  C.  SiU;  Clark 
r.  liarnwell,  12  Mow.  272;  Rich  c.  Lam- 
bert, 12  Mow.  ^il;  Zerega  i\  ropiie,  1 
Abb.  Adin.  347;  Verner  c.  Swiitzer, 
32  I'a.  St.  208;  Heuuett  v.  Filyaw, 
1  Fla.  ■103;  Aldeu  r.  Pearson,  3  (iray, 
342;  1{(  arse  r.  Hopes,  1  Sprague  3.'il; 
Xlie  Kinina  Jotinsoii,  1  Spragiie,  ,'527; 
Hunt  r.  Tlie  Cleveland,  1  Newb.  Adm. 
221 ;  JIahon  r.  The  Olive  Branch,  18  La. 
Ann.  107;  Kwart  v.  Street,  2  Itailey,  157; 
Swindler  v.  Hilliard,  2  Uich.  2H<1;  45  Am. 
Dec.  732;  Cameron  r.  Rich,  4  Strob.  108; 
B3  Am.  Dec.  670 ;  5  Rich.  352  ;  57  Am.  Dec. 
747;  Richards  r.  Hansen,  1  Fe<l.  Rep.  54; 
The  I'haros,  9  Fed.  Rep.  91'i  ;  i  he  I'oly- 
ne."ia,  16  Fed.  Rep.  702;  Shiivcr  c.  R. Co., 
24 Minn.  506;  31  Am.  Uep.353;  Merchants' 

550 


Disp.  Trans.  Co.  v.  Bloch,  86Tenn.  3!t2;  6 
Am.  St.  Ri'p.  8(7;6S.  \V.  Itep.  681;  (  hj- 
cago  etc.  R.  Co.  r.  Abel.s,  60  Miss.  1017; 
The  I.ydian  .Monarch,  23  Fed.  Rep.  278; 
St.  Louis  etc.  R.  Co.  v.  Lesser,  46  Ark. 
236;  Brown  t:  Adams  Kx.  Co.,  15  \Y.  Va. 
81'2;  Nave  v.  I'acilic  Ex.  Co.,  19  Mo. 
(App.)  504;  Winn  c.  R.  Co.,  31  Iowa  583; 
Grogan  r.  Adams  Kx.  ('o.,  114  l*a.  St. 
523;  7  Atl.  Rep.  134;  American  Kx.  Co.  v. 
Second  Nat.  Bk.,  69  I'a.  St.  304. 

2  The  Live  Yankee,  1  Deaily,  420. 

3  The  (•ompta,-i  Sawy.  375;  Tygert  r. 
The  Sinneckbon,  24  Fed.  Rep.  304  ;  Col- 
lier r.  Valentine,  11  Mo.  299;  The  Jfan- 
gulore,  23  Fed.  Rep.  402;  Hill  v.  Stur- 
geon, 28  Mo.  323;  Gillespie  v.  R.  Co., 6 
Mo.  (App.)  554.  See  The  Feme  v. 
Uolme,24  Fed.  Rep.  ,'502. 

4  Marsh  v.  Hlyth.l  Nott  &  McC.  170; 
Hammond  v.  McClure,  1  Ray,  99;  Gor- 
don V.  JJuchanan,  6  Yerg.  71 ;  Unni- 
phreys  v.  Reed,  6  Whart.  436. 


CH.  XXII.] 


EVIDENCE. 


§  338 


the  carrier  is  unable  to  show,  he  will  be  held  liable  for 
the  Avhole.^ 

§  338.     Burden  of  Proof  as  to  Negligence.— The 

carrier,  lravin<^'  proved  that  the  loss  or  damage  arose 
from  an  excepted  cause,  is  he  required  to  go  further 
and  prove  also  that  he  was  guilty  of  no  negligence 
contributing  to  the  excepted  loss?  On  this  question 
the  authorities  are  not  agreed.  In  most  of  the  States 
and  in  ihe  Federal  Courts,  upon  the  carrier  showing 
that  the  loss  or  damage  arose  from  a  cause  for  which, 
according  to  the  terms  of  the  contract,  he  was  not  to 
be  held  resp()nniV)le,  the  burden  of  proving  neglect  or 
want  of  care  on  hiw  part,  devolves  upon  the  shipper.- 


1  Speyer  r.  The  Jrary  V.elle  lloberts,  2 
Sawy.  1. 

2  This  is  the  rule  in  tlie  Federal 
CourtB:  The  AntoineUa('.,5  lien.  r)i;4; 
liazin  V.  Steam.  Co.,  3  Wall.  Jr.  22'J; 
Hearse  i:  l{o|ios,  1  .Spragne,  'Xil ;  Carey  v. 
Atkins,  G  Hen.  'S'i:  (Hark  v.  liaruwell, 
li  How.  272;  The  Invincible,  1  Low.  225; 
The  .Juniata  I'liton,  1  IJiss.  14 ;  The  Keo- 
kuk, 1  Hiss.  522;  King  v.  Shepherd,  3 
Story,  .S4;);  The  I.ady  J'ike,  2  Hiss.  141; 
t.amb  r.  I'arknian,  1  Sprague,  JU:!;  The 
^lollie  Jlohler,  2  Itiss.  50.";;  New  .lersey 
Steam  N'av.  (;o.  !•.  Merehantn'  Rank,  0 
How.  344;  The  Xiafjara  v.  Conies,  21 
Jlow.  7;  The  Ocean  Wave,  3  Hi.ss.  317; 
The  <)lbers,3  Beu.  148;  The  Orillamme, 
1  Saw.  17i;;  Itich  i:  Lambert,  12  Uow.  347; 
The  Rocket,  1  Biss.  ^.Il ;  Transportation 
f'o.  V.  Downer,  11  Wall.  129;  Turner  i: 
The  Black  Warrior,  1  McAll.  181 ;  Turney 
V.  Wilson,  7  Yerg.  340;  Van  Scliaack  c. 
Northern  Trans.  Co.,  3  Biss.  3114;  The 
Vivid,  4  Ben.  319;  Clark  v.  Barnwell,  12 
Jlow.  272;  The  New  Orleans,  2G  Fed. 
l!ep.  42;  The  Bauacouta,  39  Fed.  Hep. 
288;  Glcason  r.VirgiciaCo.,.5  Mackay,.'i6; 
Wertheimer  v.  11.  Co.,  1  Fed.  Hep.  421; 
The  Montana,  17  Fed.  Hep.  .377;  22  Id. 
715;  The  New  Orleans,  26  Fed.  liep.  44; 
The  I'ereire,  8  Ben.  301;  Six  Hundred 
and  Thirty  Casks,  14  Blatchf.  517;  The 
Portneuse,  35  Fed.   Hep.  670;  The  J.  C. 


Stevenson,  17  Fed.  Ucp.  540;  The  Vin- 
cento  T.,  10  P,eii.22S;  The  Sanitoga,  20 
Fed.  liep.  800;  The  Adriatic,  IG  lUatchf. 
424;  Marx  r.  The  Krilania,  34  Fed.  Itep. 
900.  Arkaiiiin3—L\n\o  Itock  etc.  It.  'i), 
V.  Talbot,  39  Ark.  523-  St.  l.oiii.»  etc.  U. 
Co.  v.  Weakly,  .50  Ark.  397;  7  Ani-  St. 
Hep.  104;  8  IS.  W.  Rep.  VM;  Little  Rock 
R.  Co.  V.  C  .i-coran,  40  Ark.  37.');  Little 
Rock  R.  Co.  V.  Harper,  44  Ark.  208. 
C(/7i;iec?R'?t<  —  Lawrence  c.  R.  Co.,  36 
Conn.  G;!;  see  lioies  r.  R.  Co.,  37  Conn. 
272.  /•Yorif/o— Uennett  v.  Filyaw,  1  Fla, 
403.  /oim— Mitchell  r.  V.  S.  K.x.  Co., 
40  la.  214.  A'dH.vdN— Kallinan  i:  U.  S,  K\. 
Co.,  3  Kas.  2o'i;  Kansas  etc.  R.  Co.  v. 
Reynold.-^,  8  Kas.  G2.<.  iuuisiHaa— Uruuer 
V.  The  Almoner,  IS  La.  Ann.  20");  Kcl- 
ham  i\  The  Kensington,  24  La.  Ann.  100; 
Kirk  V.  Folsom,  23  La.  Ann.  5S4;  New 
Orleans  Ins.  Co.  v.  R.  Co.,  20  La.  Ann. 
302;  Trice  r.  The  Uriel,  10  I,a.  Ann.  413; 
Thomas  r.  The  Morning  Star,  13  La. 
Ann.  2G9;  71  Am.  Die.  5u9.  Maine— 
Sagor  V.  R.  Co.  31  Me.  228.  Manjlaml— 
lialt.  etc.  R.  Co.  v.  Ilrady,  32  Md.  333; 
Bankard  r.  R.  (.'o.  34  .Md.  197;  G  Am. 
Rep.  321.  MassachusHts—WtXcn  v.  Pear- 
son, 3  (;ray,  342.  Missouri— C\ax)i.  v.  K. 
Co.,  64  Mo.  440;  Hill  f.  Sturgeon,  35  Mo. 
212;  8G  Am.  Dec.  149;  Read  r.  R.  Co.,60 
Mo.  199;  Davis  r.  R.Co.,  89  Mo.  340;  1  S.W. 
Rep.  327;  Witting  r.  R.Co.,  28  Mo.  (App). 

551 


tf^"*^ 


f»' 


§338 


EVIDENCE. 


[DIV.  III. 


I         i 


I        i 


i    ! 


<:; 

"11 

CO 


r- 


This  may  be  called  the  American  doctrine,  and  is 
founded  upon  the  reason  that  negligence  is  a  positive 
wrong,  and  will  not  be  presumed,  but  he  who  alleges 
it,  must  prove  it. 

In  a  few  States,  the  rule  as  stated  in  Greenleaf,  is 
followed,  viz.:  "And  if  the  acceptance  of  the  goods  was 
special,  the  burden  of  proof  is  still  on  the  carrier  to 
shoAV  not  only  that  the  cause  of  the  loss  was  within 
the  terms  of  the  exception,  but  also  that  there  was, 
on  his  part,  no  negligence  or  want  of  due  care."^  The 
reasons  given  for  this  view,  are  that  the  owner  does 
not,  as  a  rule,  go  with  his  property,  and  in  case  of  loss 
or  injury,  however  gross  the  negligence  may  be,  is  un- 


103;  101  Mo.  631 ;  14  S.  W.  Hep.  743,  over- 
mling  I^evering  r.  Union  Trans.  Co.  42 
Mo.  88;  97  Am.  Dec.  320;  Kctchum  v.  Ex. 
Co.,  52  Mo.  390;  Ileil  v.  U.  Co.  16  SIo. 
(App.)  303.  Neic  Jersey— Sew  Brunswick 
Steam  Co.  v.  Tii-rs,  24  N.  J.  (L.)  677. 
New  lor*— French  r.  I{.  Co.,  4  Keyes, 
108;  Lamb  v.  R.Co.,4G  X.  Y.  271;  7  Am. 
Rep.  327;  Magnin  v.  Dinsmore,  6  J.  &  S. 
284;  Moore  v.  Evans,  14  Barb.  624;  Sun- 
derland V.  WfiBtcoU,  2  Sweeny,  200;  4 
How.  Vt.  408;  Tyson  r.  Moore,  .^6  Barb. 
442;  Whitworth  v.  K.Co.,  87  X.  Y.  413; 
Canlield  v.  U.  Co.,  93  N.  Y.  532;  Sutro  r. 
Fargo,  41  X.Y.  (S.  V.)  231.  X:>rth  Carolina 
—Smith  v.  U.  Co.,  64  N.  C.  233.  Pennsyl- 
vania— Karnham  v.  U.  Co.,.')r>  Pa. St.  34; 
Am.  Ex.  Co,  V.  Sands,  55  Pa.  .St.  140;  Col- 
ton  r.  U.  Co.,  67  Pa.  St.  211;  5  Am.  Kep. 
424;  Patterson  v.  Clyde,  67  Pa.  St.  500; 
Forbes  v.  Dallett,  9  Phila.  515;  Peno.  It- 
Co.  V.  Raiordan,119  Pa.  St.  577;  4  Am.  St. 
Rep.  670;  13  Atl.  Uei).  324.  Tennessee— 
Jones  V.  Walker,  5  Ycrg.  427;  Turncy  v. 
Wilson,  7  Yerg.  340;  see  Dillard  v.  II. 
Co.,  2  Lea.  288. 

1  2  Greenleaf  Evidence  §  219;  in  Geor- 
gia.—iierry  v.  Cooper,  28  (ia.  543;  South- 
ern Express  Co.  v.  Xewby,  30  Ga.  635 ;  91 
Am.  Dec.  783;  see  Ocean  S.  S.  Co.  v.  Mc- 
Alpin,  69  Ga.  437.  Ahnnesota.—UnW  v.  K. 
Co.,  ii  N.  W.  Rep.  391 ;  Shriver  v.  R.  Co., 
24  Minn.  506;  31  Am.  Rep.  3,53;  Lindsley 
v.  R.  Co.,  36  Minn.  539;  1   Am.  St.  Rep. 

552 


692;. 33  X.  W.  Rep.  7;  Southard  r.  R. 
Co.,  62  X.  W.  Rep.  442,  619.  Mississippi.— 
Chicago  etc.R.  Co.  r.  JIoss,  6')  Miss. 
1003;  45  Am.  Rep.  428;Cliicago  etc.  R. 
Co.  f.  Abels,  60  Miss.  1017.  OWo.— Da- 
vidson f.  (iraham,  2  Ohio  St.  131;  Gra- 
ham V.  Davis,  4  Ohio  St.  ;S02;02  Am.  Dec. 
283;  United  States  Kxpress  Co.  v.  Bach- 
man,  2  Cin.  Rep.  231;amrraed,  28  Ohio 
St.  144;  KrieR.  U.  Co.  r.  Lockwood,  28 
Ohio  St.  3r>8;(iaines  v.  Union  Trans.  Co., 
28  Ohio  St.  418;  I'nion  Express  Co.  v. 
Graham,  20  Ohio  St.  595.  Perinsyliatiia.— 
Whitesides  r.  Russell,  8  Watts  &  S.  44; 
Hays  V.  Kennedy,  41  Pa.  St.  378;  80  Am. 
Dec.  027,  probably  overruled  in  later 
cases,  see  ante.  Sonih  Caro/i/ur.— Swind- 
ler u.  Ililliard,  2  Rich.  216;  Baker  v. 
Brinson,  9  Rich.  201;  07  Am.  Dec.  if, 
Cameron  i\  Rich,  4  Slrob.  108;  53  A..i. 
Dec.  670.  Texas.— l{ya.u  r.  K.  Co.,  05 Tex. 
13;  57  Am.  Rep.  588.  West  Virginia.— 
Brown  v.  Adams  Ex.  Co.,  15  \\'.  \a.  8129. 
In  Alabama,  where  the  carrier  .'hows 
that  the  loss  occurred  from  a  cause  for 
the  consequences  of  which  he  is  not  lia- 
blrt  under  his  contract,  the  onus\s  still  on 
him  (o  show  the  exercise  of  due  caro  and 
diligence  on  his  part  to  prevent  the  in- 
jury. Steele  r.  Townsend,  37  Ala.  247 ;  79 
Am.  Dec.  49;  South  etc.  R.  R.  Co.  r. 
Ilenlein,  52  Ala.  600;  23  Am.  Rep.  578; 
Mobile  etc,  R.  Co.  v.  Jarboe,  41  Ala.  644. 


III. 


OH.  XXII.] 


EVIDENCE. 


§339 


able  to  prove  it  without  relying  upon  the  servants  oi' 
the  carrier — the  very  persons  generally  by  whose  neg- 
i'gence  (if  there  was  negligence)?  the  goods  have  been 
lost;  whose  feelings,  wishes  and  interesto  are  all 
against  the  owner,  and  who  are,  as  a  general  rule,  only 
too  ready  to  exculpate  themselves  and  their  employer. 
Of  the  manner  of  the  loss  the  owner  is  generally  en- 
tirely ignorant,  while  the  carrier  and  his  servants  may 
be  reasonably  supposed  to  be  fully  advised  in  regard 
to  it.  And  while  it  is  a  rule  of  evidience  that  he 
who  alleges  must  prove,  there  is  another  rule,  viz.,  that 
the  burden  of  proof  is  upon  him  who  best  knows  Avhat 
the  facts  are.  Th-e  minority  courts  certainly  seem  to 
have  the  better  of  the  argument. 

§  339.  Burden  of  Proof  Under  Special  Circum- 
stances. — The  burden  of  proof  is  upon  the  snipper  to 
show  that  the  loss  was  from  a  cause  for  which,  by  the 
very  terms  of  the  contract,  the  carrier  was  to  be  liable. 
Thus,  where  the  liability  of  a  common  carrier  for  loss 
or  damage  is  limited  by  express  contract  to  the  case 
of  fraud  or  gross  negligence  of  himself,  his  agents  or 
his  servants,  in  an  action  against  him,  the  burden  of 
proving  such  fraud  or  negligence  is  on  the  plaintiff, 
who  must  also  show  that  such  fraud  or  negligence  was 
the  cause  of  or  at  least  contributed  to  the  injuiy.* 
Where  the  exceptions  are  conditional,  the  carrier  must 
show  his  compliance  with  the  conditions,  as  where  iron 
is  shipped,  the  carrier  not  to  be  liable  for  rust  if  the 
iron  is  properly  stowed,  he  must  show  that  it  was 
properly  stowed.^ 


1  Adams  Express  Co.  r.  Loeb,  7  Bush, 
499;  Biinkard  v.  R.  Co.,  34  Md.  197; 
Landsborg  v.  Dinsmore,  4  Daly,  490; 
Steers  ;.  Liverpool  etc.  Steamship  Co., 
67  N.  Y.  1.  To  instruct  the  jury  in  snch 
a  case  that  the  burden  of  proof  is  on  the 
defendant  is  error,  and  the  judgment 


will  be  reversed  on  appeal,  notwith- 
standing the  fact  that  the  evidence  as  it 
stands  show.-*  Hesflis^ence.  Cochran  v. 
Dindmorc,  49  N.  Y.  249;  Cragin  v.  R.  Co.^ 
51  X.  Y.  61  (1872). 

2  Kd  wards  v.  The   Cahawba,   14  La. 
Ann.  224. 

553 


Pf(', 


rr''' 


§340 


EVIDENCE. 


[DIV.  III. 


C7 


c: 

•♦■■ri 

Jrt— 

h«ii<M 

<: 

'n-1 

) 

•lU 

CO 

nMiM 


§  340.  Common  Carriers  of  Passenger*.— Bur- 
den of  Proof  of  Negligence.— In  the  carriage  of  pas- 
sengers,  the  proof  of  (a)  an  accident  or  of  (b)  an  injury; 
to  the  passenger,  does  not,  standing  alone,  create  a  pre- 
sumption of  negligence  on  the  i)art  of  the  carrier, 
though  such  a  statement  is  frequently  found  in  tlie  ad- 
judicated cases.' 

(a)  A  carrier  of  passengers  is  not  an  insurer;  acci- 
douts  may  happen,  due  to  no  Avant  of  care  on  his  part, 
and  for  which  he  is  not  responsible;  and  to  presume, 
in  all  cases  where  an  accident  occurs,  tliat  the  car- 
rier was  negligent,  would  be  to  presume  what  is  known 
to  be  untrue.-  "Accidents  may  occur  from  .a  niultitu<le  of 
eauses,  even  upon  a  railroad,  for  which  the  company  is 
not  responsible.  If  obstructions  are  i)laced  by  strang(>rs 
upon  the  road,  either  through  accident  or  design,  tlie 
company  is  not  responsibly  for  the  consequences,  un- 
less its  agents  have  been  remiss  in  not  discovering 
them.  The  straying  of  cattle  or  horses  upon  the  road 
causes  numerous  accidents,  which  are  not  chargeabk' 
to  the  company.  If  a  drunken  num  falls  asleep,  ot 
a  deaf  man  incautiously  walks  upon  the  road,  in  con- 
sequence of  whi(di  a  train  is  unavoidably  thrown  from 
the  track,  and  -i  passenger  is  injured,  he  is  without 
redress  as  against  the  company.  So,  if  a  careless 
driver,  in  crossing  a  track  fails  to  get  his  vehicle  out 
of  the  way  of  an  a])proa(diing  train.  ITow,  tlieu,  can  it 
be  assumed,  without  proof  of  any  sort,  wlirn  an  acci- 
dent has  occurred,  that  it  was  caused  by  some  careless- 


1  See  Laing  v.  Colder,  8  Pa.  St.  479;  49 
Am.  Dec.  5H3;  Yeoiiians  v.  Contra  Custa 
Co.,  44  Cal.  71 ;  Oeorge  v.  U.  Co.,  34  Ark. 
613;  /.emp  v.  U.  Co.,  9  Rich.  (L.)  84;  Wil- 
kie  V.  Holster;  .S  K.  D.  Smith,  327;  Ten- 
nery  v.  I'lppinger,  1  I'hila  r>43. 

2  Deyo  r.  R.  Co.,  U  N.  Y.  9;  U'-bbine  f. 
Mount,  4  Uobt.  561!;  33  How.  I'r.  33;  Shel- 

664 


don  V.  U.  Co.,  14  X.  Y.  224 ;  Bntton  v.  B. 
Co.,  18  N.  Y'.  252;  Warutr  v.  U.  Co.  44  N. 
Y.  471;  Cnrran  v,  Warren  Chemical 
Works,  36  N.  Y'.  1.56;  Ferris  v.  Union 
Ferry  Co.,  .36  N.  Y.  314;  Gillespie  r-.  R. 
Co.,  6  Mo.  (App.)  554 ;  Saunders  v.  U.  Co., 
60  N.  W.  Rep.  148  (S.  D.). 


.JBI' 


""""""i^pip 


OH.  XXII.] 


EVIDENCE. 


§340 


ness  on  the  part  of  the  agents  of  the  company,  and  not 
by  any  or  either  of  these  numerous  cauwoj?"' 

The  pkiinlill".s  evidence  shows  that  a  malicious  per- 
son had  phiced  an  obstruction  on  the  track,  or  talcen 
up  a  rail,  or  misplaced  a  switch  at  night,  and  the  train 
is  derailed;-  or  that  a  bridge  is  burned  or  blown  down 
by  a  public  enemy  or  by  an  unpicccdcntcd  storm;''  or 
that  a  ship  is  fired'  ujion  by  a  jtirate  and  sunk ;  or  that  the 
train  was  blown  from  a  track  by  a  tornado ;•»  or  a  ])ass- 
ing  load  of  liay  ran  into  the  side  of  a  f^treet  car' — in 
a  suit  by  tlie  injured  i)assenger,  these  facts  being 
shown,  no  presumption  of  negligence  on  the  part  of 
the  carrier  could  arise.*^ 

But  the  machinery  for  and  means  of  transportation 
being  under  his  exclusive  nmnagement  and  control, 
ami  the  carrier  having  contracted  tliat  it  sliall  be  suf- 
ticient,  and  that  his  servants  in  cluirge  thereof  will  use 
skill  and  care  in  its  managemcmt,  whenever  it  a])pears 
that  the  accident  has  occurred  tlirougli  some  defect  in 
his  vehi(de  or  nuichinery  used  in  the  transportation,  or 
in  the  road  upon  which  he  operates  them,  a  presump- 
tion  of  negligence  at  once  arisc^s,  founded  upon  the 
probability  of  the  existence  of  sonu^  defect  which  ex- 
treme vigilance,  aided  by  science  and  skill,  could  have 
detected.'     In  the  leailing  case  on  this  subject,^  it  is 


1  Onrtis  v.  R.  Co.,  18  N.  Y.  534;  75  Am. 
Doc.  2.^8. 

2  Dfvo  r.  n.  Co.  U  \.  Y.  9;  Latch  v. 
U.  Co.,  27  1..  ,1.  (Kx.)  15,5. 

•3  .Siiwver  V.  K.  Co.,  ;i7  5Io.  240;  K.is. 
Pac.  H.  Co.  V.  Miller,  2  Col.  442. 

4  McClary  v.  II.  Co.,  3  Neb.  44;  19  Am. 
Rep.  iVM. 

t>  Fed.  St.  U.  Co.  V.  Gibson,  or.  I'a.  St. 
83. 

6  Thomp.  Carr.  Pass.,  214. 

7  Christie  V.  Grigjrs.  2  Ciimp.  79;  Car- 
pno  V.  II.  Co.,  5  (J.  H.  747;  lioycc  v.  Cali- 
fornia Stage  Co.,  25  C'al.  4(iO;  Transpor- 
tation Co.  r.  DowtiPr,  11  Wall.  129;  Kar- 
rish  V.  RtMRle,  11  Gratt.  697;  62  Am.  Dec. 
666;  Brehmu.  R.  Co.,.34  Uarb.  256;  Mc- 
Kinney  v.  Neil,  1  McLean,  540;  Stockton 
r.  Frey,  4  Gill,  406;  48  Am.  Dec.  1.S8; 
Stokes  f.  Saltonstall,  l.S  Pet.  181;  Lvgo 
V.  Nowbold,  9  Ex.  .W2 ;  Laing  v.  Colder,  8 
Pa.  St.  479;  49  Am.  Dec.  533;  Galena  etc. 


R.  Co.  V.  Yarwood,  15  III.  468:  17  1)1.  509; 
65  Am.  Deo.  6s2 ;  Fi'iU'l  v.  R.  Cc,  luy 
Mass.  :«8:  Bowen  v.  R.  (;o.,  IS  N.  V.  4ns; 
Toledo  etc.  R.  Co.  v.  JSegps,  85  111.  80; 
I'ills.  pic.  H.  Co.  r.  Thompson,  ufi  III. 
1.^8;  Halt.  etc.  R.  Co.  v.  Wightnian,  29 
Gratt,  431;  Railroad  Co.  v.  PollanI,  22 
Wall.  .341 ;  Meii-r  v.  R.  Co.,  64  Pa.  .si.  230; 
Sullivan  i'.  1{.  Co.,  30  I'a.  St.  Tr.\ ;  Walker 
t'  R.  (;o.,63  ISarb.  2R0;  Dmiphertv  r.  R. 
Co.,9Mo.  (App.)  484;  Caldwell  r.  New 
Jersey  Steam  Co.,  47  N.  Y.  282;  Urown 
V.  R.  Co..  49  Mich.  153;  13  N.  «'.  i{ep. 
494;  Chicago  etc.  R.  Co.  r.  Trotter,  60 
Miss.  412;  Rose  v.  Stciihenn  ete.  T-ans. 
Co.,  20  lilatehf.  411 ;  Sawver  v.  U.  Co.,  37 
Mo.  240;  Bait.  etc.  R.  Co,  v.  Noell,  ,32 
Md.  394;  Yor.ncr  i".  Kinney,  28  <!a.  Ill; 
Smith  V.  British  Packet  Co.,  46  N.  Y.  (S. 
C.)  80;  88  N.  Y.  408. 

8  Cnrtia  v.  R.  Co.,  18  N.  Y.  534 ;  75  Am. 
Dec.  258. 

555 


I 


§340 


EVIDENCE. 


[div.  in. 


X 

p 

ft**-" 

■.a 

v^  ■ 


r 

•ts.'Z 

r- 

M.OM 

WO 


said:  "It  is  the  duty  of  all  engaged  in  this  business  in 
any  iii'xle,  to  use  cure  to  secure  the  safety  of  the  pas- 
seugor,  proportioned  to  the  (hinger  incidont  to  the  ntode 
of  conveyance.  In  case  this  care  is  apj)lied,  us  a  gen- 
eral result,  the  safety  of  the  passenger  will  be  secured, 
so  far  as  that  safety  depends  ui)on  the  state  or  condi- 
tion of  any  of  the  means  provided  by  tho  carrier,  arc! 
used  in  the  business.  If  thei'e  is  no  imperfection  in 
any  of  these,  and  suitable  caution  is  eniploye<l  by  those 
engaged  in  their  application,  everything  dependent 
thereon  will  accomplish  the  end  in  view.  This  is  as 
certain  as  the  laws  of  mechanics.  When,  thei-efore, 
an  injury  is  received  from  a  derangement  of  anything 
employed  by  the  carrier,  the  presumpti(jn  necessarily 
arises  that  there  existed  somewhere  an  imperfection 
in  the  machinery  ('m])loyed,  or  negligence  in  its  ai)pli- 
cation.  It  is  the  duty  of  the  carrier  to  provide  per- 
fect macliinery,,and  if  he  has  failed  in  this,  it  devolves 
upon  him  to  show  the  excuse,  if  any.  This  is  the  rule 
applicable  to  all  <'ases  where  a  party  seeks  exonera- 
tion from  a  duty  imposed  upon  him  by  law,  or  incurred 
by  contract.  The  i)laintitT  has  estiiblished  his  cause 
of  action  when  he  has  shown  a  failure  to  perform  the 
duty  from  whidi  he  has  sustained  an  injury-.  It  is  for 
the  defendant,  then,  to  show  the  facts  relieving  him 
from  responsibility  in  the  particular  case.  This  im- 
poses no  hardship  upon  the  defendant  in  this  class  of 
cases.  The  whole  management  is  exclusively  under 
his  control.  He  has  ample  means  to  show  the  true 
cause  of  the  diffi'culty.  The  plaintiff  knows  nothing 
about  it.  He  takes  passage  with  the  carrier,  who,  in- 
stead of  conveying  him  safely,  inflicts  an  injury  upon 
him  by  the  failure  of  some  part  of  the  machincn-y  em- 
ployed by  him.  In  many  cases  it  would  be  impos- 
sibie  for  the  plaintiff  to  ascertain  the  particular  defect, 
556 


;(•  !J 


ClI.  XXII.] 


EVIDENCE. 


§340 


and,  I  think,  no  .such  oblij-utiou  in  impost'd  upon  him 
by  the  rules  of  evidence." 

Tlierefore,  where  the  pus.senj^cr  is  injured  on  account 
of  a  stage,  haclc  or  omnibus  brealcing  down,  or  over- 
turning;' or  tlie  horses  running  away  or  starting  while 
the  jtassenger  is  alighting;-  or  a.  railroad  cai  or  train 
running  olT  the  track  or  overturning;'  c  i  defective, 
broken  o'-  misplaced  rail  or  switch,  causing  a  iloiail- 
ment;^  or  the  washing  away  of  the  embankintuL  Hup- 
porting  the  track;"'  or  the  colliwion  of  vehicles,  whether 
railroad  trains,  street  cars,  ships  or  other  ( onvey- 
ances;"  the  breaking  of  an  axle,"  or  wheel ;^  or  the  ex- 
plosion of  a  boiler;"  or  the  breaking  down  of  a  bridge,'*^ 


1  Warev.  Gay,  11  Pick.  in6;  Fiirisli  r. 
KciRlo,  11  (iriilt.  COT;  fi2  Am.  Dec.  6f,B; 
Kriiilt  f.  Cotter,  17111.  4U(i;  KairchilU  i'. 
California StaKe(/'o.,  13  Cul.  5',l!);  Iloycc 
r.  Culifornia  Stage  Co.,  '25  Cul.  4iJ0;  Mc- 
Kinncy  v.  Neil,  1  .^IcLean,  .")40;  Stockton 
v.Vrt'y,  4  Oill.  4M ;  45  Am.  Dec.  lliH; 
Stokes  I'.  Sultonstall,  13  I'et.  181 ;  Sulton- 
stall  V.  .Stockton,  Taney,  11;  Lemon  v 
Chunslor,  G8  .Mo.  30;  Tennery  r.  I'ippiu- 
ger,  1 1'hila.  543;  McLean  v.  liurbank,  11 
llinn.  277;  Kyan  r,  (iilmer,  3  Mont.  617  ; 
Wall  V.  Livezay,f)  Colo.  405. 

2  Uiiljorts  V.  Johnson,  5,')  X.  Y.  GI3;  5  J. 
&  S,  157.  "This  sli()svi'il/)ri»i«/«c'je  t'lllicr 
that  the  horsus  were  iinsiiitahk-  tor  such 
service  or  the  driver  incoinpi'tcnt  or  ncg- 
liK''nt  in  the  performance  of  his  iluty." 

■1  Sullivan  r.  U.  Co.,  .^0  I'a.  St.  234  ;  Pitts- 
burgh etc.  U.  Co.  v.  Thompson,  6ii  HI. 
13H;  Yonpe  f.  Kinney,  2H  Ga.  Ill;  Zemp 
r.  U.  Co.,  9  Ilieh.  L.  84 ;  I'coria  etc.  K.  Co. 
I'.  Ueynokls,8H  111.  418;  I'itts.  etc.  K.  Co. 
I'.  Williams,  74  Ind.  4(i2 ;  Stevens  v.  K.  Co. , 
6GMe.  74;  Keiiel  r.  K.  Co.,  KCJ  Mass. 
3'J8;  EdfTertou  r.  11.  Co.,  35  liarb.  38'J;  :j9 
N.  Y.  227;  lierry  r.  U.  Co.,  124  Mo.  223, 
27-2. 

*  Georgia  r.  1{.  Co.,  ,35  Ark.  613;  (!nrtis 
V.  R.  Co.,  20  llnrl).  2S2;  Ualtimore  etc.  I{. 
Co.  1'.  Worthington,  21  MU.  275;  Urignoli 
V.  H.  Co.,  4  Daly,  182. 

6 1'hiladelpliia  etc.  U.C'c.  r.Auderson,  94 
Pa,  St.  351 ;  39  Am.  Rep.  787.    lu  Curtis  v. 


U.  Co.,  \H  N.  Y.  534,  75  Am.  Dee.  258,  it  it> 
said:  "The  cases  in  which  tlio  carrier:; 
would  1)(!  exeiiii)t  fniin  responsibility 
would  be  far  less  frecpient  where  the 
transportation  is  tijion  railroads  than 
where  it  is  upon  coiiniiiMi  roads,  becansu 
railroad  eoiiiiiaiiies  have  the  entires  con- 
trol of  the  track  and  of  all  engaged  iu 
itsusi'." 

«  Iron  K.  Co.  v.  Mowry,  ;iG  Ohio  St.  418; 
38  Am.  I!eii.,")'.i7;  N'ew  Orleans  etc.  K.  Co. 
f.  Alll)ritt()n,38  Miss.  242;  liailroad  Co, 
r.  Pollard,  22  Wall.  341;  Walkerr.  It.  Co., 
G3  liarb.  2i;n ;  Smith  c.  I!.  Co.,  .32  Minn.  1; 
50  Am.  l!ep.  C50;  l.S  N.  W.  Uep.  8i7;  Mil- 
ler  r.  U.  Co.,  5  Mo.  (App.)  471;  Sherlock 
f.  Ailing,  44  Ind.  184  ; 

7  Jleyeri'.  U.  Co.,  64  Pa.  ,St.  225;  Bait. 
etc.H.  Co.  r.  Wightnian,  29  (Iratt.  431; 
Halt.  etc.  U.  Co.  v.  Noell,  ,32  (;ratt.  374; 
liegeman  f.  K.  Co.,  IG  liarb.  .353;  13  N. 
Y.  9. 

H  TohMlo  etc.  It.  Co.  r.  Hcggs,  85  111.80; 
Y'erkes  i:  Keokuk  etc.  Co.,  7  Mo.  (App.) 
2G5. 

'J  Y'eomans  v.  Contra  Costo  N<iv.  Co.,  44 
Cal.  71;  Caldwell  v.  X.  J.  Steam  Co.,  47 
N.  Y.  282;  Uoso  r.  Stephens  etc.  Trans. 
Co.,20  lilatdif.  211;  The  New  World  v. 
King,  10  How.  469;  liobinson  v.  li.  Co.,20 
Blatchf.  ,338. 

!0  Bait.  etc.  R.  Co.  v.  Wightman,  87 
Gratt.  431;  Bait.  etc.  R.  Co.  v.  Notll,  32 
Gratt.  37*. 

557 


F/r"  iftp^^H 


ill 


§340 


EVIDENCE. 


[DIV.  III. 


>  I 


c:> 

•*  '5* 

m 

CO 


MtMM 


the  presumption  of  negligence  on  the  part  of  the  car- 
rier, arises. 

So,  the  presumption  of  negligeni-e  was  held  to  arise 
where,  before  a  passenger  on  a  street  car  arrived  at 
his  seat,  the  car  was  started  with  a  jerk  throwing-  liim 
against  tho  window  and  hu-eratiug  his  liaud;'  where 
a  passenger  on  a  railroad  ti*ain  which  was  slowly  en- 
tering the  station,  while  on  her  feet  preparing  to  leave 
the  car  was  thrown  down  and  injured  by  a  sudden 
bumi)  of  the  cars  against  each  other;"  where  a  passen- 
ger on  a  railroad  train,  was  injured  by  the  fall  of  a 
ventilating  window  of  the  coach  in  which  he  was  rid- 
ing;'' where  the  landing  plank  of  a  steamboat  fell  while 
a  passenger  Avas  crossing  it.* 

The  same  principle  applies  where  the  injury  is  the 
act  of  the  servants  or  agents  of  the  carrier.  The  car- 
rier's duty  is  not  only  to  provide  safe  machinery,  but 
to  employ  competent  persons  to  operate  it.  If  the  ma- 
chinery is  perfect  and  the  servant  is  negligent  in  o])- 
erating  it,  there  is  a  breach  of  duty.  And  there  is  no 
distinction  as  to  the  burden  of  proof,  and  the  pre- 
suniption  of  negligence  between  a  case  where  the  in- 
jur}^ is  caused  by  the  machinery  being  carelessly  op- 
erated, and  where  the  act  of  the  servant  is  the  proxi- 
mate cause  of  the  injury.  Therefore,  where  a  passen- 
ger by  boat,  while  standing  in  a  proper  place  on  tlie 
boat,  was  injured  by  one  of  the  carrier's  servants  eu- 


1  Dangherty  f.  R.Co.,'9  Mo.  (App.)  478; 
81  Mo.  3'i:i;51  Am.  Hep.  '237.  "As  the 
team  and  brake  are  the  means  by  which 
a  stationary  car  is  put  in  motion,  when 
the  movement  was  forward  in  the  direc- 
tion of  that  power,  it  is  hardly  reason- 
able to  fay  it  is  merely  conjectural  that 
the  motion  came  through  the  agency  of 
the  driver.  Had  the  car  been  thus  sud- 
denly and  violently  jerked  by  the  appli- 
cation of  some  other  external  force  not 
under  the  control  of  the  driver  it  would 

558 


have  been  nnusual  and  outside  of  the 
ordinary  course  of  things.  In  such  case 
it  would  certainly  be  reasonable  to  re- 
quire the  defendant  to  show  such  fact 
so  peculiarly  within  its  knowledge." 
Murphy  v.  U.  Co.,  3G  Ilnn.  197;  and  see 
Bait.  etc.  U.  Co.  v.  Swan,  32  All.  Hep.  174 
(Md). 

2  Railroad  Co.  v.  I'ollard,  22  Wall.  341. 

■■)  Och  V.  K.  Co., 31  S.W.  Uep.!»(')2  (Mo.). 

4  Kagle  Packet  Co.r.  Uefrie8,94Ill.598. 


i 


CH.  XXII.] 


EVIDENCE. 


§340 


Mioh  fuct 
lowlodge." 
; ;  and  sue 
.tl.  Hep.  174 


gaged  in  loading  a  bale  of  cotton  on  the  boat  allow- 
ing it  to  fall  upon  him,  it  was  held  that  a  presumption 
of  negligent  handling  of  the  cotton  arose.^ 

(b)  The  contract  of  the  cavrier  does  not  insure  iigaiuet 
death  or  injury  while  upon  the  vehicle,  but  only  so  far 
as  it  arises  from  his  failure  to  safely  and  securely  trans- 
port the  passenger.  Hence,  if  it  were  shown  only  that 
the  passenger  was  injured  by  a  gunshot  fired,  or  an 
object  thrown  from  without;-  or  was  .struck  by  light- 
ning and  died  while  riding  in  the  vehicle;  or  fell  down 
while  it  was  standing  still,^  there  would  be  no  presumi)- 
tion  of  negligence.  As  said  in  a  Pennsylvania  case: 
"A  passenger  may  die  while  in  his  seat  in  a  car,  from 
disease,  or  from  his  own  act,  just  as  he  might  die  in 
his  own  house  from  the  same  cause,  but  we  never  heard 
it  alleged  that  the  carrier  was  liable  in  danu\ges  be- 
cause of  a  death  so  happening,  nor  that  it  was  his 
duty  to  show  a flirma lively  that  the  death  Avas  due  to 
causes  over  which  he  had  no  control.  Death  from 
natural  causes  can  hardly  be  called  an  accident,  but 
if  it  was  otherwise,  yet  there  is  a  very  broad  distinc- 
tion between  the  case  of  its  coming  to  a  passenger 
as  an  individual,  by  reason  of  circumstances  and  con- 
ditions that  are  jun-sonal  and  ])eculiar  1<I  him,  and 
tlie  case  of  its  coming  to  a  passenger  as  such  by  reason 
of  accident  to,  or  on  account  of,  the  means  of  trans- 
portation emi)loyed  by  the  carrier,  Avhether  in  motion 
or  not.  In  the  former  class  of  cases,  no  presumption 
of  negligence  <'an  arise,  for  the  facts  furnish  no  foun- 
dation for  it.  In  the  latter  there  is  a  presumption, 
not  conclusive,  but  prima  facie,  on  which  the  plaintiff 
may  rest,  and  which  the  carrier  must  overcome."* 


1  Memphis  etc.  U.  Co.  v.  McCocl,  83 
Ind.  3'.)2 ;  43  Am.  Hep.  71 ;  Hospes  i>.  U. 
Co.,  2".»  Fed.  Rep.  763. 

2  Holbrook  v.  R.  Co.,  12  N.  V.  236;  64 
Am.  Dec.  50'2. 


3  Dongherty  v.  R.  Co.,  9  Mo.  (App.)480. 

4  Penn.  U.  Co.  v.  Riordan,  119  I'a.  St. 
77;  4  Am.  St.  Rep.  670;  13  All.  Kep.  824. 

.559 


4.Kii|iipiil  II 


§340 


EVIDENCE. 


[DIV.  III. 


■nc 


CO 


£■5 


The  presumption  does  not  arise  where  the  injury  to 
the  passenger  arises  from  an  active,  voluntary  move- 
ment on  his  part,  combined  with  some  alleged  defic- 
iency in  the  carrier's  means  of  transportation  or  ac- 
commodation; the  reason  being  that  here  there  may 
have  been  contributory  negligence  on  the  part  of  the 
passenger,  who  was  able  to  see  what  he  was  doing,  and 
control  his  movemeits.^  In  one  case,  the  plaintiff,  a 
female  passenger,  assisted  by  her  husband,  tlie  train 
having  stopped,  was  leaving  the  car  platform  when,  on 
stepping  from  the  lowest  step  to  the  ground,  she  in 
some  way  fractured  her  knee  cap.  It  was  held  that 
this  did  not  show  «  prima  facie  case  of  negligence  on 
the  part  of  the  carrier.^  The  court  said:  "The  cars 
were  at  rest  on  the  track;  there  was  no  jar  or  break- 
ing of  machinery;  Mrs.  Napheys,  with  the  assistance 
of  her  husband,  was  descending  the  steps  from  the 
platform  of  the  car.  They  had  every  opportunity  of 
seeing  and  knowing  whore  she  was  going,  and  con- 
trolling her  movements.  If  the  lower  step  was  incon- 
veniently or  dangerously  high  for  her  in  the  condition 
she  was,  she  and  her  husband  had  as  good  opportunity 
as  anyone  else  of  knowing  the  fact.  If  they  had  even 
a  suspicion  that  it  was  in  the  least  degree  unsafe  for 
her  to  take  the  last  step,  there  was  no  urgent  necessity 
for  her  to  do  so.  The  train  had  reached  its  destina- 
tion and  there  was  no  occasion  for  haste  in  leaving 
the  car.  If  th?y  had  any  apprehension  of  danp;er,  or 
even  inconvenience  in  descending  from  the  lower  step, 
there  was  nothing  to  prompt  them  to  incur  the  risk. 
They  miglit  have  called  on  those  in  charge  of  the  train 
to  provide  a  better  and   more  convenient  means  of 


1  Thomp.Carr.  Pas.  §  214;  Beel.ennr- 
ron  r.  Kni^t  Uonton  Ferry,  11  Allen,  312; 
Chicago  etc.  R.  Co.  v.  Trotter,  60  Miss. 
412. 

560 


2  Pelaware  etc.  H.  Co.  v.  Napheys,  90 
Pa.  St.  135. 


"^"'    if 


CH.  XXTI.] 


EVIDENCE. 


340 


3heys,90 


egress,  if  they  deemed  it  necessary.    Taking  the  un- 
contradicted facts  of  the  case,  as  they  were  presented, 
there  existed  no  reason  for  relaxing  the  general  rule 
that  he  who  alleges  negligence  as  the  basis  of  a  claim 
for  damages,  is  bound  to  approve  it  affirmatively."     In 
a  very  recent  case  in  Georgia,'  the  plaintiff's  evidence 
showed  that  she  was  a  passenger,  having  with  her 
two  or  three  small  bundles.       When  she  entered  the 
train,  finding  that  the  receptacles  fastened  to  the  side 
of  the  car  above  the  seats  for  hohliug  packages  and 
bundles  of  passengers  were  beyond  her  reach,  she  stood 
upon  a  seat,  and  placed  her  bundles  in  the  receptacle 
herself.     No  servant  of  the  company  saw  her  do  this, 
nor  did  she  ask  any  assistance  in  so  doing.     When  she 
reached  a  point  on  her  Journey  where  it  was  necessary 
to  change  cars,  she  arose,  stood  upon  the  seat,  and 
attempted  to  take  down  the  bundles;  and  while  in  this 
position,  the  ears  suddenly  moved,  and  she  was  thrown 
from  the  seat  on  which  she  Avas  standing,  to  the  floor, 
and  injured.     The  tralu  had  safely  reached  its  destina- 
tion, sto]iped  at  the  usual  place  for  passeugers  leaving 
the  cars,  remained  there  long  enough  for  all  of  the 
passengers  to   alight,   saving  the   plalntifl",   and   then 
moved  down  a  few  steps,  where  it  stopped  again.     It 
did  not  appear  that  in  the  moveuient  of  the  traiu  there 
was  any  unusual  jerk,  nor  that  plaintiff  cabled  the  iU- 
tention  of  any  servant  of  the  defendant,  to  tlu'  situa- 
tion of  her  bundles,  or  requested  any  assistance  from 
them  in  her  efforts  to  remove  them  from  the  place 
where  she  had  deposited  them.       The  servants  of  the 
company  were  outside  the  car,  assisting  the  passengers 
who  were  alighting.     None  of  them  saw  her  attempt 
to  get  up  on  the  seat.     Said  the  court:  "IJailroad  com- 


1  East  Tenn.  R.  Co.  f.  Green,  22  S.  E. 
Rep.  658. 

37 


561 


1f 


§340 


EVIDENCE. 


[DIV.  III. 


CO 


V^  w 

MM'M 

<;■ 

:u:j 

CO 


3>: 


panies,  in  the  transportation  of  passengers,  are  bound 
to  extraordinary  care.  They  are  not  bound  to  take 
the  greatest  possible  degree  of  care  in  the  discharge  of 
duties  towards  passengers,  but  the  extraordinary  care 
required  of  them  is  defined  by  the  Code  to  be  that  ex- 
treme care  and  caution  which  every  prudent  and 
thouglitful  persons  use  in  and  about  similar  matters. 
It  is  true  the  presumption  of  negligence  arises  when 
the  fact  of  injury  is  shown,  but  in  the  very  circum- 
stances out  of  which  the  presumption  arises  it  may 
likewise  be  rebutted.  This  plaintiff  was  in  a  perfectly 
safe  situation.  The  company  had  ])rovided  her  with 
a  means  of  transportation  which  afforded  every  possi- 
ble immunity  against  injury,  as  long  as  she  enjoyed  it 
in  the  manner  usual  to  passengers,  and  in  the  manner 
designed  by  the  company.  The  seats  were  made  for 
the  accommodation  of  passengers  sitting  upon  them. 
It  was  not  designed  that  tbey  should  be  employed  as 
footstools.  The  company  had  the  right,  reasonably, 
to  expect  that  the  passenger  would  not  so  use  these 
contrivances,  designed  for  his  comfort  and  conven- 
ience, as  to  expose  himself  to  danger;  and,  in  moving 
its  cars,  it  had  the  right  to  presume  that  the  passenger 
would  not  employ  these  seats,  designetl  for  his  con- 
venience, and  as  well  for  the  security  of  the  company, 
in  such  a  way  as  to  ex^  ose  himself  to  hazar<l  and  the 
company  to  loss.  Its  agents  could  not  anticipate  that 
at  the  time  when  this  passenger  was  supposed  either 
to  have  left  the  car,  or  to  have  been  seated  within  it,  she 
would  be  standing  in  a  dangerous  position  upon  one  of 
the  seats  in  the  car.  We  do  not  think  that  this  injury, 
therefore,  can  be  attributed  to  any  act  of  negligence 
upon  the  part  of  the  company.  The  evidence  ])oints 
out  no  duty  imposed  by  law  or  contract,  the  iwrform- 
ance  of  which  was  omitted  by  the  agents  of  the  com- 
562 


CH.  XXII.] 


EVrDENCE. 


§341 


pany,  and  it  points  out  no  act  of  negligonco  committed 
by  tliem.  This  occurs  to  us  to  have  been  one  of  that 
class  of  injuries  against  the  infliction  of  which  no  rea- 
sonable degree  of  human  foresight  could  havo  made 
provision,  and,  so  far  as  the  company  was  concerned, 
it  may  be  stated  as  resulting  from  pure  accident.  If 
not  an  accident,  it  is  saved  from  that  classification  only 
by  reason  of  the  negligence  of  the  passenger  in  expos- 
ing herself  unnecessarily,  in  a  hazardous  position,  to 
dangers  against  which  the  exercise  of  ordinary  care 
and  prudence  upon  her  part  would  have  afforded  per- 
fect inimunitA'." 

So,  the  mere  fact  that  the  plaintiff  wns  run  over  dur- 
ing the  time  he  was  a  passenger,  does  not  throw  the 
burden  of  proof  of  negligence  on  the  carrier,  for  to  be 
run  over,  he  was,  presumptively,  not  in  the  place  where 
he  ought  to  have  been,  viz.,  inside  the  car.^  So,  where 
an  accident  happens  to  the  passenger,  in  consequence 
of  his  having  thrust  his  arm  out  of  the  window,  so  that 
it  comes  in  contact  with  some  substance  which  the 
train  is  passing.^ 


con- 
pany, 
nd  the 
that 
oither 
t,  she 
one  of 
ujury, 
igence 


)()ints 
rform- 
e  com- 


§  341.     Burden  of  Proof  of  Contributory  Negli- 
gence. — The  plaintiff  (according  to  the  Aveight  of  au- 
thority, for  there  is  a  difference  of  opinion  among  the 
courts),-''  isi  not  requireil,  in  making  out  his  case  to 


1  Mitchellr.  H.  Co.,30Ga.22;  Railroad 
Co.  t'.  Mitchell,  11  Heisk.  400;  State  v.  11. 
Co.,  58  Me.  221;  Bait.  etc.  K.  Co.  t'.  State, 
63  srd.  135. 

2  Thomp.  Carr.  Pass.,  214. 

3  In  some  states  it  is  incumbeut  npon 
the  plaintiff  in  all  actions  for  injuries 
through  the  negligence  of  another,  to 
prove  thiit  he  himself  was  in  the  exer- 
cise of  ilue  care  at  the  time  of  the  occur- 
rence of  the  accident.  Connecticut.— 
Beers  v.  R.  Co.,  19  Conn.  66fi;  Park  v.  O'- 
Brien, 23  Conn.  3:)9;  Fox  V. Glastenbury, 
29  Conn.  204 ;  Birge  v.  Gardiner,  19  Coun. 


507.  Illinois.-Dycv  v.  Talcott,  lo  IM.  300 ; 
Chicago  r.  Major,  18  111.  347;  Kepperly  v. 
Kiinisden,  83  111.  3,')4;  Slissouri  P^iruace 
Co.  I'.  .Vhend,  107ni.  44;  47  Am.  Rep.  24; 
Aurora  Branch  R.  Co.  v  Grimes,  13  111. 
fiS5;  Chicago  etc.  K.  Co.  r.  Hazard,  20  111. 
873;  Chicago  etc.  R.  Co.  r.  Gregory, 58  111. 
272;  Galena  etc.  R.  Co.  v.  Kay,  16  111.  AOO; 
63  Am  Dec.  3.'3;  Galena  etc.  II.  Co.  r.  Ja- 
cobs, 20  111.  478.  /ot«a.— lU'itonr.  R.  Co., 
42  la.  192;  Uusch  r.  Davenport,  !)  Iowa, 
443;  Reynolds  r.  nindman,  32  Iowa,  146; 
Plaster  r.  R.  Co.,  33  Iowa,  449;  Carlin  v. 
U.  Co.,   37  Iowa,  316;  Muldowney  v.  R. 

5G3 


11 


§341. 


EVIDENCE. 


DIV.  III. 


o 

"■■It 
<i 

■rj 


IT"" 

M-.MI 


prove,  in  nddition  to  tlio  injury  to  himsplf  from  the 
proved  or  presumed  negligence  of  the  carrier,  that  he 
himself  wae  free  from  contributory  negligence.^ 


Co.,SOiowa  G15;  36  iowa,  462;  32  Iowa, 
176;  1-attersou  r.   IS.  Co.,  38   Iowa,  27!); 
Wayi).  U.  Co.,  40  Iowa,  311;  Uoiicu  v.  R. 
Co.,  E3  la.  27S;  Nelson  r,  H.f'o.,  HSIa.S.^9; 
45  la.  601 ;  Cirouiilcal'  i:    R.  Co.,  i!)  la.  14; 
4  Am.  Uup.   IHl;  SI,,.-  on  t:  R.  Co.,  55  la. 
294.  Iinlinna. — liloonunfrton  v.  Rogers,  83 
Inil.  2ij;  Louisvillo  etc.  U.  Co.  c.  Orr,  84 
Ind.  83;I,(niisvilleelc.  R.Co.  v.  Lo-.^kridge, 
93  Ind.  191 ;  IMty  of  Fort  Wayne  v.   Do 
Witt,  47  Iml.  391;  Jackson  r.  R.  Co.,  47 
Ind.  4E;4;  Evansville  etc.  R.  Co.  v.  Hiatt, 
17  Ind.  102;  Hathaway  v.  R.Co.,4G  Ind.  2.'5; 
Cincinnatietc.lt.   (;o.  r.  Mc:\!ullen,    117 
Ind.  4.1;  20  X.  IC.  Ilep.  2^7;  Jeflersonvillc 
etc.    R.  Co.   V.    Hendricks,  26  Inil.  228; 
Michiijan  etc.  R.  Co.  i\  Lantz,  29  Ind.  r>;8; 
Toledo  etc.  K.  Co.  r.  ISrannafran,  75  Ind. 
490;  Jloiint  Vernon  r.  Dnnoiicjielt,  '2  Ind. 
586;  54  Am.  Dec.  467;  Wayne  r.  1  urnjiike 
Co.,  5  Ind.    2s6;  Wahash    (!anal    Co.   v. 
Slayer,  10  Ind.  4(10;  Indianajjolis  etc.   R. 
Co.  c.  Keoly,  23  Ind.  l.i.i ;  Kvansville  etc. 
R.  Co.  V.  Dexter,  24  Ind.  411 ;  Toledo  etc. 
K.  Co.  V.  TSevin,  26  Ind.  443;  Pitts,  etc.  R. 
Co.    V.    Vinin?,   27    Ind.    513;    Rie.^t    v. 
Cioschen,  42  Ind.   HX);  City  of  Anderson 
r.  Harvey,  67  Ind.4'J0;  (iorniley  c.  R.  Co., 
72  Ind.  31;  .lelferiion  etc   R.  (^o.  r.  Lo;fan, 
72  Ind.   107;  I'itts.   et(\  R.  Co.  v.  Noel,  77 
Ind.   110;  Louisville  etc.  R.  Co.  c.  Head, 
80  Ind.  117.  ZoMWif/iia.— Moore  r.  .Slireve- 
port,  3  I.ii.  .\nn.  615;  sei;  i!yan  r.   R.   Co., 
)1    South  Rep.    30.      J/fu/ic— IJenson    v. 
TiteoMil),  72  Me..';!;  «;ieasonr.  llremen, 
50  -Me.  222;  Buzzell  r.  l-aeonia  Slaii.  Co., 
48  Me.  113;  Dickey  r.  Maine  Tel.   Co.,  46 
Me.,4K3;  Perkins  v.    R.  (V..,  29  Me.  307; 
aierrill  r.  Hampden,  26  Me.  234;  Ivennard 
r.  liurton,  25  Me.  39;  43  Am.   Dec.    349; 
Foster  r.   Deslield,  19  Mo.  .380;  French  v. 
Brunswick,  21  Mo.   29;  ,38  Am.   Dec.  2.")0; 
I.,c8an  r.  It.  Co.,  77  Me.  85.    Afassachu- 
getti<.—ln  'I'hoi'ip.    Carr.    Pass.   551  it  is 
Kaid:  "The  llrst   case  in  Massachusetts 
which  clearly  decides  that  the  hurden  of 
proof  is  upon  the  plaintiff  to  show  the 
absence  of  contributory  nefjlisen(;e  on  his 
part  is  Lane  v.  Crombie,  12  Pick.  177.  The 
court  treats  the  question  as  settled,  and 
cites  as  authority  Rutterlleld  f.  Forrester, 
11  Kast,  61;  Harlow  i'.  Ilnmiston,  6  Cow. 
191;  Smith  v.  Smith,  2  Pick.  621.    These 

564 


cases,  however,  go  no  further  than  to  as. 
sert  the  doctrine  that  a  plaiutilf  ;anuot 
recover  if   his    evidence   shows  he  was 
guilty  of  contributory  negligence.   John- 
son c,  Hudson  R.  Co.,  5  Ducr,21,  25.    The 
cases  in  Massachusetts  follow  Lane  v. 
Crombie,  Adams  r.  Carlisle,  21  Pick.  146; 
Rigi'low  r.  Rutland,  4  Cush.  247;  J!os- 
worth  I'.  Swansey,  10   Mete.   'AKi;  43  Aiu. 
Dec.  441;  i'arker  v.  Adams,  12  .Mete.  415; 
Lucas  V.  R.  Co.,  6  Gray,  64;  Robinson  u. 
U.  Co.,  7  Gray,  92;  Callahan  v.  i'.<an,'» 
Allen,  401;IIickey  v.  R.  Co.,  14  Allen, 42i 
431;  Gayuor  v.   It.    Co.,    100   Mass.    2P' . 
Murjihy  r.  Deane,  JOl  Mass.  455;  Allynt;. 
R.  Co.,  105  Mass.  77;    Lane  v.  Atlautio 
Works,  107  .Mass.  104;  Ojpley  v.  R.  Co., 
136  JIass.  6;  t'rafts  r.  IJoston,   109  Mass. 
519;  Prentiss  r.   lios.on,    112   Mass.  43; 
Corcoran  r.  R.  Co.,  1.33  Mass.  507 ;  Rileyw. 
It.   Co.,  i;l5  Mass.  292;  Wheelwright  I'u. 
Co.,  l.'ij  .Mass.   225;  Taylor  v.  R.   Co.,  143 
Mass.  470;  ION.  IC.  Rep.  ,308.  Mirhigan.— 
Lake  Shore  It.  Co.  v.  Miller,  25  .Mich.  274; 
Detroit  elc.  R.  Co.  v.  Van  Steinburg,  17 
Mich.  99;  Lo  Raron  f.  Joslin,  41   Miclu 
313;  2  N.  W.  Rep.  ,36;  .Mitchell  v.   R.  Co., 
51  Mich.  236;  47  Am.  Rep.  .WO;  16  N.  W. 
Hep.  38S;   Mynning  v.  R.   Co.,  67  Mich, 
682;    ,35  .\.    W.   Rep.  811.    Mississippi.-^ 
Vicksburg  v.  Hennessy,54  Miss.  ,391 ;  (\>n- 
tral  li.  Co.  V.  Mason,  51   Miss.  234.     AVw 
I'or/;.— Spencer  r.    R.    Co.,  5  Itarb.  .■<3V; 
liwlton  )•   U.  Co.,  18  X.  V.248;  ,liilinso/i  j'. 
R.  Co.,  20  N.  Y.  65;  Wilds  v.  It.  Co.,  2J  a. 
V.  430;  Krnst  r.  It.  Co.,  24  How.  l*r.  a": 
Tidman  r.  R.  Co.,  98   N.   V.  1%;  50  Am. 
Itep.619;  Lee  f.  Troy  Gas  Co.,  98  N.   'i . 
115.    North  Cfiro^iJin.— Owens  c.  R.  Co., 
8SX.  C.  5'12;  Manley  v.   R.Co.,  74   X.  C. 
655  ;  Doggctt  r.It.tJo.,  78  X.C.  305.  Hut  it  is 
the  rule  generally  in  these  States  that  the 
jilaintilf's  due  care  may  be  inferred  from 
the  facts  wilhont  being  shown  diiectly. 
Foster  r.  Di.\lleld,  18  Me.  380;  French  f. 
l{runswick,21  Me.  29;  Xelson  r.  It.  Co,,i!8 
la.  664;  Murphy  c.  R.Co., 38 la.  5,39;  451;i. 
661;  Mayo.  v.  R.  Co.,  104  Mass.  137;  Pren- 
tiss r.  lioston,  112  Mass.  43;  Hinckley  t'. 
U.  Co.,  120  Mass.  257. 

1  Federal  Courts.— Railroad  Co.  v. 
Gladman,  15  Wall.  401 ;  Crew  r.  R.  Co.,  2U 
Fed.  Rep.  87;  Indianapolis  etc.  R.  Co,  v. 


i 


III. 


CH.  XXII.] 


EVIDENCE. 


§341 


u'.)  .'in. 

:i8  >:.  ^'. 

,  K.  Co., 
7i   N-.  C. 

lint,  it  is 

s  tUiit  the 

■Yf'l  from 

(liii'cUy. 

I'l'l'licll    V. 

K.  (Vi.,;i8 
5:!9;  4r>l,'i. 
H7;  I'l-cn- 
incklcy  t'. 

Co.  V. 
,  U.  Co.,  20 
.B.  Co.  V. 


The  arguments  in  favor  of  this  rule,  which  is  almost 
universally  favored  by  the  text  writers/  are  that  the 
law  will  never  presume  negligence,  whether  the  party 
be  charged  with  it  or  not,  and  that  a  presumption  must 
aris^  from   the   natural   iuKtindt  of   self-preservation 


Hoist,  9a  U.  8.  291;  Second  v.  U.  Co.,  5 
McCrary,  515  ;  Hoiitth  r.  H.  Co.,  100  U.  .''. 
213;  Morgan  v.  UridgoCo.,  5  Dill,  'JG;  Dil- 
lon t'.  U.  Co.,  3  Dill.  325 ;  Texas  etc.  U.  Co. 
t'.Volk,  l.M.  U.  S.  7.^.  Alabama.— Uniooi  v. 
Wetumpka,  24  Ala.  IIJ ;  Mobile  etc.  K. 
Co.  f.  Il(!usha\v,  fi5  Ala.  fiGil;  Thompson 
V.  Duncan,  7G  Ala.  3;u.  Ari:mia.—Jloh- 
son  V.  U.  Co.,  11  I'uc.  Hep.  545.  Califor- 
7iia.— McQuillan  v.  15.  Co.,60Cal.  7;  Finn 
V.  Vallejo,  7  C'al.  225;  Kobinson  i-.  U.  Co., 
48Cal.  4l)i);  Gay  f.  Winter,  34  Cal.  1S3; 
Slacdongall  v.  K.  Co.,  03  Cal.  4,il ;  May  v. 
Hanson,  5  Cal.  .SGO;  r,;i  .Vm.  Dec.  1.35; 
Nehrbas  r.  11.  Co.,  02  Cal.  ;;■.;().  Colorado.— 
Sanderson  f.  Frazier,  8  Colo.  79;  5  I'ao. 
Eep.  6.12;  Denver  etc.  R.  Co.  r.  Ityan,  28 
Pac.  llep.  79.  /JaAnia.— Sanders  v.  Ueis- 
tcr,  1  Dakota,  151;  4fi  N.  \V.  Uep.  G80. 
Geoj-jfia.— Thompson  v.  M.  Co.,  54  (ia.  509; 
see  I'ratherf.  U.  Co.,  80  Ga.  4J7;  9.'*.  K. 
Uep.  530.  7f/«Ao.— IIo:ikins  v.  K.  Co.,  13 
Pac.  Uep.  343.  A'«nsns.— Kansas  etc.  11. 
Co.  f.  Pointer,  14  Kas.  37;  9  Kas.  620; 
Kansas  etc.  U.  Co.  v.  Phillibeit,  25  Kas. 
'M'i;  Jlissouri  Pac.  1{.  Co.  v.  McCally,  41 
Kas.  619;  21  Pac.  Uep.  574.  KeiitiK  ki/.— 
Paducah  etc.  U.  Co.  r.  Hoelil,  12  Hush. 
41 ;  Louisville  etc.  Canal  Co.  c.  Murphy, 9 
ISush.  522;  Kentucky  etc.  U.  Co.  v. 
Thomas,  79  Ky.  100;  42  Am.  Uep.  208; 
Louisville  etc.  U.  Co.  v.  Goetz,  79  Ky.  442; 
42  Am.  Uep.  227.  Mari/la  </.— Krech  r. 
U.  Co.,  39  .Mil.  574  ;  Iruiu  v.  Sprij;!r,G(;ill. 
206;  lialtimoro  f.  Marriott,  9  Md.  106; 
Northern  etc.  U.  ('o.  v.  State,  31  JId.  3.J7; 
Counly  <  omniissiouers  r.  Hurfiess.Gl  Md. 
29.  Miniii'sota.—Uofum  v.  Weitherick, 
2'2  Minn.  1,52.  AfisBoiiri.  —  VnWiH  v.  U.  Co., 
19  S.  \V.  Uep.  818;  Crumpley  i'.  U.  Co.,  19 
S.  W.  Uep.  820;  Thompson  v.  U.  Co.,  51 
Mo.  190;  llicks  v.  U.  Co.,  65  Mo.  34;  64 
Mo.  430;  Schuerman  v.  U.  Co.,  3  JIo.  App. 
665;  IJoydt'.  U.  (;o.,53Mo.  500;  Buescn- 
ing  f.  .St.  Louis  Gas.  Co.,  7JMo.  219;  .39 
Am.  Uep.  503.  Nebraika.—City  of  Lin- 
cola  r  Walker,  20  N.  W.  Uep.  113:  An- 
derson V.  R.  Co.,  62  N.  W.  Rep.  84C.    New 


Hampshire— White  v.  R.  Co.,  .SO  N.  H. 
207;  Smith  r.  U.  Co.,  35  X.  H.  36G.  New 
Jersey.— yioorc  v.  U.  Co., 24  X.  J.  tL.)  268; 
New  Jer.-.i'y  Kx.  Co.  f.  Xichols,  32  X.  J. 
(L  )  166;  33  Id.  431 ;  Durant  v.  Palmer,  29 
X.  .J.  (L.)  544.  0/iio— Cleveland  etc.  R. 
Co.  V.  Crawford,  24  Ohio  St.  636 ;  I!alt.  etc. 
U.  Co.  V.  Whil;icre,  35  Ohio  St.  627.  Ore- 
gon.—Gniut  V.  liaker,  12  Oregon,  329;  7 
I'ac.  Uep.  318.  PenhS!|h•ania.—l)^•i\i[.y  v. 
i.itmore,161*a.  St.  463;  Krier.  Schwingle, 
22  Pa.  St.  3M;  Penn.  Canal  Co.  v.  P.ent- 
ley,  66  I'a.  St.  30;  lUish  r.  Johnson,  23  Pa. 
St.  2.  9;  Ilaysr.  Gallagher,  72  Pa.  St.  136; 
Alleni'.  Willard,  571'a.  St.  374;Malloi-y 
V.  Griffey,  8i  Pa.  St.  275;  Weiss  v.  U.  Co., 
79  Pa.  St.  387 ;  Penn.  U.  Co.  r.  Weber,  76 
Pa.  St.  157;  72  Pa.  St.  27;  Penn.  U.  Co.  v. 
McTighe,  46  Pa.  St.  316;  Hays  v.  Galla- 
gher, 72  Pa.  St.  13G;  linidwell  I'.  U.  Co., 
139  Pa.  St.  404;  21)  Atl.  U,p.  1046.  Ilhode 
/s/aiK/.— Cassidy  f.  Angell,  12  U.  1.  447; 
34  Am.  Uep.  690.  Soiitli  Carotiita.-ViUi- 
nerr.  U.  Co.,  4  Rich.  (L.)  329;  55  Am. 
Dec.  678;  Carter  c.  U.  Co.,  19  S.  C.  20;  45 
Am.  Uep.  7,54 ;  Uoot  r.  U.  Co.,  4  S.  C.  61. 
jTe.Jd.s.— Texas  etc.  U.  Co.  v.  Murphy,  46 
Tex.  316;  Dallas  etc.  U.  Co.  v.  Spicker,  61 
Tex.  427;  48  Am.  Uep.  297;  Houston  etc. 
It.  Co.  I'.  Cowscr,  57  Tex.  29!;  San  An- 
tonio etc.  It.  Co.  r.  Itennett,  76Tex.  151; 
13  S.W.  Uep.  319;  UailroadCo.r.  Kedeker, 
67  Tex.  187;  2  S.  W.  Uep.  513;  Gidf  etc. 
U.  Co.  i'.  Shieder,  30  S.  W.  Uep.  904. 
Vermont.— UiW  v.  Xew  Haven,  37  Vt.  501 ; 
but  sec  r>arber  I'.  i;ssex,27  Vt.  62;  Dover 
V.  Danville,  63  Vt.  183.  Ifasliin/jton.- 
Spurrier  v.  U.  Co.,  29  Pac.  Uep.  340. 
Ifest  r(r(?i/iia.— slieef  r.  Huntingdon,  16 
W.  Va.  317.  >ri,«'onsin.  —  Prideaux  v. 
Mineral  Point,  43  Wis.  513;  28  Am.  Uep. 
558;  Iloytr.  Hudson,  41  Wis.  105;  Ach- 
tenhagen  r.  Watertown,  18  Wis.  .331; 
Potter  i'.  Chicago  etc.  U.  Co.,  22  Wis.  615; 
8.  c.  21  Wis.  372;  Milwaukee  etc.  R.  Co.  r. 
Uunter,  11  Wi.s.  160. 

1  See  TlKUnp.   Carr.  Pass.  551;  2  lU'd- 
Held  Uail.  253 ;  Hutch.  Carr.  §  803. 

565 


f  »  I  ,1   tWp^"*^"^ 


§841 


EVIDENCE. 


[dIV.  III. 


I|iii 


!    > 


o 

"'I 


■•■J* 

<:: 

CO 


••••4 

WO 


that  he  was,  at  the  time  of  the  accident,  in  the  exer- 
cise of  due  care  and  caution  for  his  personal  safety, 
and  that,  therefore,  the  injury  was  solely  attributable 
to  the  conduct  of  the  party  proven  to  have  been  in 
fault;  who,  if  he  would  relieve  himself  from  legal  lia- 
bility for  the  damage  sustained  by  reason  of  his  negli- 
gence, is  charged  with  the  burden  of  showing  that  the 
plaintiff  was  negligent  himself. 

The  arguments  on  the  other  side  are  that  the  plaint- 
iff, being  obliged  to  prove  all  the  facts  necessary  to 
entitle  him  to  recover,  must  prove,  first,  that  the  de- 
fendant was  negligent,  and  secondly,  that  the  injury 
occurred  'n  consequence  of  that  negligence.  Bui  to 
prove  the  latter,  he  must  certainly  «how  that  the  in- 
jury was  not  caused  in  whole  or  in  part  by  his  own 
negligence,  for  although  the  defendant  was  negligent, 
yet  if  the  plaintiff's  negligence  contributed  to  the  in- 
jury, then  it  is  obvious  that  it  did  not  occur  througli 
the  defendant's  negligence.  Therefore,  the  plaintiff 
would  not  prove  enough  by  merely  showing  negligence 
on  the  defendant's  part;  he  must  go  further  and  prove 
that  the  injury  was  caused  by  this  negligence,  which 
must  be  done  by  showing  a  want  of  concurring  negli- 
gence on  his  own  part,  which  proof  is  no  more,  after 
all,  than  that  the  injury  was  caused  by  the  negligence 
of  the  defendant.*  "We  think  this  argument  fallaci- 
ous," say  the  Supreme  Court  of  Texas,  in  a  late  case.^ 
"It  assumes  that  plaintiff  cannot  recover  unless  it  ap- 
pears that  the  injury  was  caused  solely  by  the  negli- 
gence of  defendant,  when  the  law  is  that  he  may  re- 
cover when  defendant's  negligence  is  only  one  of  sev- 
eral contributing  causes;  the  defendant  being  able  to 
defend,  where  one  of  such  causes  is  plaintiff's  negli- 


1  See  Park  v.  O'Urien,  23  Conn.  339. 

566 


a  Gnlf  etc. 
Kep.  902. 


n.  Co.  V.  Shieder,  30  8.  W. 


CH.  XXII.] 


EVIDENCE. 


§341 


^oli- 


ap- 

'gli- 

re- 

sev- 

[e  to 

jegli- 

is.  w. 


gence,  not  on  the  ground  that  his  own  negligence  was 
not  the  sole  cause  of  the  injury,  but  upon  the  ground 
that  the  law  will  not  permit  i)laintiff  to  recover  where 
it  is  shown  that  his  own  wrongful  or  negligent  act 
contributed   to   the   injury.      The  real    ground   upon 
which  the  rule  is  based'  i«  the  assumption  that  the  law, 
from  the  fact  that  plaintiff  was  injured,  raises  a  prima 
facie  presumption  that  he  was  guilty  of  negligence  con- 
tributing thereto.     If  this  assumption  be  correct,  then 
it  follows  that  before  he  can  recover  he  must  show 
that  he  was  not  guilty  of  contributory  negligence.     We 
are  of  the  opinion  that  the  law  raises  no  presumption 
of  negligence,  from  the  mere  fact  of  injury,  against 
either  the  plaintilT  or  the  defendant.     Negligence,  like 
fraud,  is  a  species  of  wrong,  and  will  not  be  presumed. 
The  rule  seems  to  be  well  settled  that  it  is  not  neces- 
sary for  the  plaintiff  in  his  petition  to  negative,  either 
by  facts  stated,  or  by  express  averment,  the  existence 
of  contributory  negligence  on  his  part.     This  was  held 
by  Duer,  J.,  in  1SG5;^  by  the  Supreme  Coui^t  of  Cali- 
fornia in  1874;-  by  Chief  Justice  Roberts  in  1870.^    And 
Lord  Penzance,  in  1878,  in  delivering  his  opinion  in 
the  house  of  lords  in  a  leading  case,*  said:  'I  think  I 
may  safely"  say  that  no  such  declaration  was  ever  seen.' 
We    have    been    able   to    find    no   case    where    such 
pleading  has  been  required,  except  in  a  few  of  those 
States  where  the  burden  of  proof  is  upon  plaintiff  to 
show  that  he  was  not  guilty  of  contributory  negligence. 
Since  these  States  have  changed  the  well-established 
and  logical  rule  of  evidence  at  common  law,  consist- 
ency would  seem  to  require  a  corresponding  change  in 
the  rule  of  pleading;  but  it  seems  that  only  a  few  of 


1  Johnson  v.  U.  Co.,  5  Duer,  22. 
8  Robinson  v.  K.  Co.,  48  Ciil.  426. 
3  Uailroad  Co.  v.  Murphy,  46  Tex.  360 ; 
Railroad  Co.  v.  Cowser,  67  Tex.  303. 


4  Railway  Co.  v.  Slattery,  3  App.  Cas. 

1180. 

I 

567 


.H  Bii   mm' 


§341 


EVIDENCE. 


[DIV.  III. 


m ' 


I  ; 


7< 


c: 

•.•ji 

if  11 

M.U 

) 

<- 

nl 

) 

':j::} 

<*»»^ 

...■■' 


3r* 


them  have  so  ruled.  As  said  in  the  Slattery  case, 
above  referred  to:  'If  any  such  burthen  lay  upon  the 
plaintiff,  it  would  certainly  have  been  necessary  for 
him,  in  the  days  when  pleadings  were  required  to  be 
more  precise  and  strictly  accurate  than  perhaps  they 
are  now,  to  allege  in  his  declaration  that  the  accident 
hai^pened  without  any  such  negligence  on  his  own  part 
as  contributed  to  cause  it.  And  yet  I  think  I  may 
safely  say  no  such  declaration  was  ever  seen.'  ''^ 

To  the  rule  followed  in  the  majority  of  the  States 
which  imposes  upon  tlie  defendant  the  burden  of  proof 
on  the  issue  of  contributory  negligence,  there  are  two 
well-defined  exceptions:  First.  Where  the  legal  effect 
of  the  facts  stated  in  the  petition  is  such  as  to  establish 
prima  facie  negligence  on  tlie  part  of  i)laintiff  as  a 
matter  of  law,  then  he  must  plead  and  prove  such  other 
facts  as  will  rebut  such  legal  ])resumption.  The  phiin 
reason  is  that  by  pleading  facts  wliich,  as  a,  matter  of 
law,  establish  his  contributory  negligence,  he  has  made 
a  prima  facie  defense  to  his  cause  of  action  Avhich  will 
be  accepted  as  true  against  him,  both  on  demurrer  and 
as  evidence  on  the  trial,  unless  he  j)leads  and  i)roves 
such  other  facts  and  circumstances  that  the  court  can- 
not, as  a  matter  of  law,  hold  him  guilty  of  contribu- 
tory negligence.  When  he  lias  done  this,  he  has  made 
a  case  which  must  be  submitted  to  the  jury.  For  in- 
stance, if  plaintiiT's  petition  shows  that  he  was  injured 
by  defendant's  cars  while  on  the  track,  under  circum- 
stances which  in  law  would  make  him  a  trespasser 
prima  facie,  then  the  law  would  raise  a  presumption 
of  contributory  negligence  against  him,  for  which  his 
petition  would  be  bad  on  demurrer;  and  it  would  be 
necessary  for  him  to  plead  some  fact  or  circumstance 
rebutting   such   presumption — such   as   that  he  was, 


1  See, also,  Johnson  r.  U.  Co.,6  Dncr.26. 

508 


en.  XXII.] 


EVIDENCE. 


§342 


after  going  upon  the  track,  stricken  down  by  some 
providential  cause — in  order  to  save  his  petition,  and 
on  the  trial  the  burden  would  be  upon  him  to  establish 
such  cause.^  Second.  When  the  undisputed  evidence 
adduced  on  the  trial,  establishes  prima  facie  as  a  mat- 
ter of  law,  contributory  nej^lioence  on  the  part  of 
plaintiff,  then  the  burden  of  proof  is  upon  him  to  show 
facts  from  which  the  jury  upon  the  whole  case,  may 
find  him  free  from  ue<>ligence;  otherwise,  the  court 
may  instruct  a  verdict  for  defendant,  there  being  no 
issue  of  fact  for  the  jury.- 

§  342.    Burden  of  Proof  .—Telegraph  Companies. 

— Where  the  message  is  not  delivered  as  sent,  or  is 
not  delivered  within  a  reasonable  lime,  a  presumption 
of  negligence  on  the  part  of  the  company  arises,  and 
throws  upon  it  the  burden  of  showing  that  the  failure 
arose  from  a  cause  for  which  it  is  not  responsible  in 
law.''  So,  where  the  destination  of  a  message  is  on 
the  line  of  a  connecting  company,  the  first  comi)any 
must  show  that  it  was  properly  delivered  to  the  latter.'* 
So,  where  a  message  is  received  by  the  company,  at 
one  of  its  offices  in  one  State,  for  transmission  to  a 


1  Honst.  etc.  U.  Co.  r.  Sympkins, 
64  Tox.  G18. 

zSiinchozt;.  U.Co..27S.W.Rep.922,nnd 
casus  cited.  Ciissidy  v.  AiiKi'll,  12  K.  1. 
447;iIoust.  etc.  11.  Co.  v.  Sympkins,  54 
Tex.  (il8 ;  Gulf  utc.  11.  Co.  v.  Shieder,  30 
S.  W.  Hop.  902. 

3  AvLT  t:  West.  U.  Tel.  Co.,  79  Mc.  493; 
1  Am' St.  Uep.  353;  lJ.ald\vin  v.  Tel.  Co., 
45  N.  Y.  744;  6  Am.  Uep.  105 ;  De  Uutto  t". 
Tel.  Co.,  1  Duly,  547;  30  llow.  Pr.  403; 
Uittcuhouse  v.  ind.  Line,  44  N'.  Y.  2G3;  4 
Am.  Rep.  6".i;  Turner  v.  Te!.  Co.,  41 
Iowa,  458;  20  Am.  Uep.  605;  Bartlett  v. 
Tel.  Co.,  62  Me.  209;  16  Am.  Uep.  437; 
Dorgan  v.  Tel.  Co.,  1  Am.  I>.  T.  400; 
West.  U.  Tel.  Co.  v.  Carew,  15  Jlich.  525; 
Tyler  17.  Tel.  Co.,  74  111.  168;  24  Am.  Uep- 
279;  60111.  421;  14  Am.  Bop.  38;  West.  U 


Tel.  Co.  V.  Meek,  49  Ind.  53 ;  AVest.  U. 
Tel.  Co.  V.  Scirclp,  10.^  Ind.  227;  2  N.  K. 
Uep.  604;  Uedington  v.  Pac.  I'ost  Tel. 
Co  ,40Pao.  Uep.  43i  (Ciil.);  Tel.  Co.  v. 
Griswold,  37  Ohio  St.  ,H01;41  Am.  Uep. 
500;  Uarkness  r.  Tel.  Co.,  73  Iowa,  190; 
5Ani.  St.  Rep.  072;  34  N.  AV.  Uep.  811; 
West.  U.  Tel.  Co.  i:  Crall,  33  Kan.  679;  5 
Am.  St.  Uep.  795;  17  I'ac.  Uep.  3()9;  Fow- 
ler V.  Tel.  Co.,  80  Me.  3S1 ;  6  Am.  St.  Uep. 
211;  15Atl.  Uep.  2'J;  Little  Uoek  etc.  U. 
Co.  r.  Pavis,  41  Ark.  79;  see  Sweetland  v. 
Tel.  Co.,  27  Iowa,  4M;  1  Am.  Uep  285;  U. 
S.  Tel.  Co.  V.  Gildersleeve,  29  Md.  232;  96 
Am.  Dee.  519. 

i  2  Turner  v.  Tel.  Co.,  51  la.  468 ;  20  Am. 
Uep.  "'5;  Grange  v.  Tel.  Co.,  25  La.  Ann, 
383. 

669 


t 


rT,'<«"'j — -r 


I  i 


c:> 

:^ 

jit- 

.•' 


r- 

M^»1 

cj:? 

^x; 

:t 

1 

;        .»: 

■ 

..rf( 

§343 


KVIDENCE. 


[DIV.  III. 


point  in  another  State,  and  is  novel*  deiivorod  to  tlie 
person  to  whom  it  is  addressed,  it  is  incumbent  on  the 
company,  in  order  to  escai)e  liability  for  a  statutory 
penalty,  to  show  that  the  messafj^e  was  in  fact  trans- 
mitted from  that  oflice  with  due  dilij;(>nce,  and  tluit 
the  non-delivery  to  the  sendee,  was  due  to  some  default 
or  other  cause  arising  beyond  the  limits  of  the  State.^ 

§  343.  Burden  of  Proof.— Sleeping  Car  Com- 
panies. — While  probably  the  nun-e  fact  that  a  passen- 
ger in  a  sleeping  car  finds,  when  he  awakes,  tliat  his 
money  or  valuables  or  other  projerty  which  he  has  with 
him  are  missing,  is  not  sufficient  evidence  of  negligence 
on  the  part  of  the  company,  to  call  upon  it  to  ex- 


I  West.  U.  Tel.  Co.  v.  HoweU,  22  S.  K. 
Uep.  28ii  ((Jft.),  llic  court  snyiiiK:  "In  tho 
cnseat  bar  the  plaiiitilF  showcil  a  lireacli 
of  contract,  and  prima  facie  neKliK''"<'i'i 
which  iiiiiHt  have  occurrcil  on  tlie  tie- 
fenilant's  line,  either  in  this  state  or  in 
Alabama.  X'ndoulitedly,  it  was  in  the 
exclusive  power  of  tlu;  telegra|)h  com- 
pany to  show  tlie  exact  point  where  tho 
failure  of  (lilifren(^e  occiirreil,  and  tlirough 
tho  nef;li;rence  of  wluit  particular  ser- 
vant it  was  occasioned.  It  will  not  do  to 
say  tliat  the  servants  of  the  company  are 
equally  at  the  disposal  of  the  plainlilf  to 
prove  tho  facts  connected  with  the  trans- 
action. The  truth  of  tliis  assertion  may 
be  demonstrated  by  tlie  peculiar  facts 
hero  presented.  The  plainlilf,  it  is  true, 
did  know  the  company's  agent  at  I.itho- 
nia,und  jierhaps  could  have  secured  him 
as  a  witness  at  the  trial.  Hut  suppose 
this  had  been  done,  and  he  had  testilled 
that  he  had  promptly  forwarded  the 
message  to  the  relay  oflice  at  Atlanta,  but 
had  no  further  knowledge  as  to  the  trans- 
action. How  could  the  plaintiff  pursue 
his  investigation  and  proof?  Would  he 
have  to  sue  out  interrogatories— for  ho 
could  not  compel  personal  presence  in 
another  county— directed  to  each  and 
every  one  of  the  ntimerous  employes  of 
the  company  stationed  in  the  Atlanta 
cilice?    Certainly,   the   company   could 

570 


not  rear.onably  bo  expected  to  aid  him 
by  furnishing  a  list  of  all  Its  servants, 
nor  to  keep  him  j)Os'ed  when  any  ot 
them  resigned,  or  were  transferreit  else- 
where. It  niiglit  be,  and  doubtless  is, 
often  convenient  to  the  <U)Mipany  to 
change  the  location  of  its  employes,  and 
itcoulildo  so  in  the  utmost  good  f.uitli; 
but,  whatever  the  motive,  the  inconven- 
ience to  the  plainlilf  in  reaching  them  as 
witnesses  would  be  the  same.  Again,  it 
cannot  bo  known  that  the  telegraph  com- 
pany keeps  sucli  records  in  writing  ot  its 
business  as  would  enable  the  plainlilf  to 
show  the  reiiuired  facts  by  com|ielllng 
the  defendant  to  produce  its  records  in 
court.  Hesiilt^s,  how  would  it  be  known 
thi^t  such  records,  if  kept  at  all,  were 
correct?  If  the  company  itself  did  not 
see  to  it  that  evidence  of  negligence  was 
not  recorded  against  it,  would  it  not  bo  a 
temptation  to  its  employes  to  omit  mak- 
ing any  record  of  th' ir  own  shortcom- 
ings which  might  lit  in  their  dis- 
charge? And,atlasi  is  would  merely 
be  a  diileront  wayof  compelling  the  com- 
pany to  supply  evidence  entirely  within 
its  own  keeping.  It  follows  from  tho 
foregoing  that  the  default  should  bo 
treated  as  having  occurred  in  Georgia, 
the  burden  being  on  tho  defendant  to 
show  the  contrary,  and  it  having  failed 
to  do  so." 


mmm 


on.  XXII.] 


EVIDENCE. 


§343 


plain  the  loss,  yet  whore  the  cimimstancoa  of  the  tlieft 
tend  to  show  that  but  for  the  defendant's  ueLrllKouce 
the  loss  would  not  have  occurred,  a  prima  fuck:  case 
of  negli},^ence  arises,  and  the  burden  of  proof  in  .shifted  ' 
And  very  slight  evidence  will  be  sutlicieut  to  take  the 
case  to  the  jury,^'  for  a  sleeping  juisst^nger  can  never 
know  whether  or  not  the  defendant's  (servants  are  keei)- 
ing   diligent    watch,    they    having   the   strongcKl    in- 
terest to  exonerate  themselves  from  any  charge  of  neo- 
ligence.     A  rule  that  would  prevent  the  case  from  <^o- 
ing  to  the  jury  without  amrmative  proof  that  at  tlie 
time  when  the  theft  took  place,  or  at  some  time  durin- 
the  night,  the  defendant's  servants  were  not  keeping 
watch,  would  in  most  cases  deprive  passengers  of  any 
redress  for  the  loss  which  they  might  sustain  through 
the  negligence  of  such  carriers. 


1  Bevls  V.  K.  Co.,  26  Mo.  (App.)  21. 


2  Pnll.  Pal.  Car  Co.  i>.  Freudcnstein,  34 
Pac.  Bep.  678  (Colo.). 

571 


r|r-" 


'  li 


I    ' 


CHiiPTER  XXIII. 


DAMAGES. 


1    I 


CO 

■WtiM 

< 


Section  344. 
346. 
346. 

347. 

848. 
349. 
350. 

351. 
352. 


Measure  of  Damages. — Ordinary  Bailments. 
Measure  of  Damages. — Common  Carrier  of  Goods. 
Measure  of  Damages. — Common  Carrier  of  Passengers.— 

For  Breacli  of  Contract. 
Measure  of  Damages. — In  Actions  of  Tort. 
Exemplary  or  I'un'tive  Damages. 
Measure  of  Damages. — Telegrai)h  Companies. 
Damage  for  Mental  Suffering.— Recoverable  In  Texas  and 

otiicr  States. 
The  Texas  Doctrine  Denied  in  some  States. 
Arguments  for  and  against  the  Texas  Doctrine. 


§  344  Measure  of  Damages.  —  Ordinary  Bail- 
ments. — If  eitliei"  bailor  or  bailee  violate  the  contract 
of  bailment  whereby  damage  results  to  the  other,  the 
injured  party  has  a  right  of  action,  the  object  of  which 
is  to  place  him,  so  far  as  money  can  do  it,  in  the  same 
situation  as  if  the  contract  had  been  performed.  The 
amount  which  the  plaintiP'  is  thus  entitled  to  recover 
is  calltHl  the  measure  of  damages.'  In  an  action  by  the 
bailor  against  an  ordinary  bailee,  for  not  returning 
the  bailed  article,  the  measure  of  damages  is  the  value 
of  the  article  on  the  day  it  should  have  been  returned 
with  interest  from  that  time;-  or  if  the  action  be  for 
returning  it  in  a  damaged  condition,  the  measure  of 
danmges  is  the  difference  between  its  value  as  returned 
and  its  value  had  it  been  returned  in  good  order.-'     The 


1  Laws.  Contr.,  §§  457,  458. 

2  Hull  V.  Douglass,  4  Mimf.  303;  G.  Am. 
Dec.  508;  Christian  v.  Miller,  3  I.elKh. 
78;  23  Am.  Dec.  251;  UuntinRton  t».  ICiig- 
lish,  86  Pa.  St.  247;    Bait.  etc.  It.  Co.  v. 

572 


.Sewell,  35  Md.  238 ;  r,  Am.  Kep.  402 ;  Day  v. 
Perkins, 2  Sandf.  357;  Fosdick  t>.  Greene, 
27  Ohio  St.  484  ;  22  Di-c.  328. 

3  Hyde  v.  Mech.  Retrig.  Co.,  144  Mass. 
432;  U  N.  £.  Bcp.  673. 


OH.  XXIII.j 


DAMAGES. 


§844 


sale  of  a  pledge  without  the  proper  notice  or  other 
legal  formalities,  will  render  the  pledgee  answerable 
for  its  true  value,  without  any  reference  to  the  price 
at  which  it  was  sold.^  And  in  some  cases,  as  where 
the  pledge  consists  of  stock,  the  pledgor  will  be  en- 
titled to  recover  its  increased  value  after  the  time  of 
the  actual  conversion,  and  sometimes  even  down  to 
the  day  of  the  trial.  But  the  reasonable  rule  of  dam- 
ages would  seem  to  be,  to  give  the  owner  of  the  prop- 
erty its  market  value  at  the  time  he  sek-cts  to  call  for 
it.  The  pledgee  who  has  wrongfully  appropriated  the 
plc^dge,  cannot  complain  of  such  a  measure  of  dam- 


ages.' 


If  the  thing  has  been  returned  but  not  at  the  proper 
time,  the  bailor  is  entitled  to  recover  his  loss  arising 
from  the  delay.^  And  in  general,  the  law  permits  the 
recovery  of  anticipated  profits  where  their  loss  might 
reasonably  be  supposed  to  have  been  in  the  contempla- 
tion of  both  parties,  at  the  time  of  the  making  of  the 
contract,  as  the  result  of  non-performance,*  provided 
the  loss  of  the  profits  be  the  natural  and  necessary 
result  of  the  brea^  ./'  and  not  losses  arising  from  other 
collateral  undertakings  entered  into  upon  the  faith  of 


1  Edw.  Bail.,  §  260;  Simes  v.  Zane,  1 
Phi  la.  501. 

2  Kdw.  P-iil.  §  260;  Pesch  i'.  Consolida- 
tion Bk.,  l.H  i'liila.  157;  see  Clark  f.  Spar- 
bank,  2  Week.  Notes  111. 

.1  Story.  Bail.,  §  269;  Leonard  r.  Dnn- 
ton,  51  111.  482 ;  99  Am.  Dec.  568;  Cothran 
f.  Ellis,  107111.  413;  Uusaell  ».  Roberts, 
3  E.I).  Smith,  318. 

*  U.  S.  V.  Behan,  110  U.  S.  338;  i  S.  C. 
Kep.  81;  Boyd  r.  Moighan,  48  N.  J.  L. 
404;  4  Atl.  Hep.  778;  Hubbard  v.  Howell, 
51  Conn.  423 ;  Schneider  i-.  U.  S.,  19  Ct. 
of  CI.  547;  Adams  E.\.  Co.  v.  Egbert,  36 
Pa.  St.  360 ;  78  Am,  Dec.  382 ;  Taf t  r.  Tiede, 
65  la.  370;  7  X.  \V.  Uep.  617. 

6  Coweta  Falls  Mantg.  Co.  v.  Rogers, 


19Ga,416;  i'.5  Am.  Dec. 602;  McKinnon  r. 
JIcE\van,4S  Mich.  106;  42  Am.  lU'p.  4.")8;  11 
N.  \V.  Hep.  828;  Hoy  v.  Gronoble,  34  Pa. 
St.  9;  75  Am.  Dec.  028;  Simmons  v. 
Brown,  5  l{.  I.  290;  73  Am.  Dec.  66; 
Adams  Ex.  Co.  v.  Egbert,  36  Pa.  St.  360, 
78  Am.  Dec.  382 ;  Field  v.  U.  S.,  16.  Ct.  of 
CI.  434;  Pitts.  Steel  Co.  r.  Hinckley,  17 
Fed.  Ueji.  5S4;  Goodrich  v.  Hnbbard,  51 
Mich.  63;  10  X.  W.  Hep.  232;  Wisuer  r. 
Barber,  10  Or.  .342;  Fairchild  v.  Rogers, 
32  Minn.  269;  20  X.  W.  Hep.  191;  Donnell 
V.  Jones,  17  Ala.  689;  52  Am.  Dec.  194; 
Fnller  v.  Curtiss,  100  lud.  2,S7;  50  Am. 
Kep.  786;  Howe  Machine  Co.  i>.  Btyson, 
44  la.  159;  24  Am.  Rep.  735. 

573 


i 


-< 

c: 


';;:.•. 


WO 

:;3;: 


§345 


DAMAGES. 


[dIV.  III. 


the  promise.'  AikI  the  profits  which  the  bailee  ex- 
pected to  realize  from  the  keeping  or  the  use  of  the 
thing,  are  recoverable  by  him  from  a  bailor  who  re- 
fuses to  deliver  it  in  accordance  with  the  contract^ 

In  the  case  of  a  loan,  if  the  borrower  has,  by  an  im- 
proper use  of  the  thing  loaned,  made  a  profit,  that 
profit  belongs  to  the  lender."' 

§  345.     Measure  of  Damages.— Common  Carriers 

of  Goods.  — The  measure  of  damages  in  actions 
against  common  carriers,  is  the  value  of  the  goods  lost 
or  the  amount  b^'  Avhich  their  value  has  been  dimin- 
ished by  injury.  And  as  the  value  of  goods  varies  not 
only  from  time  to  time  but  in  diflerent  places,  and  bo- 
cause  goods  are  transported  friun  place  to  place  on  ac- 
count of  the  greater  requirements  of  the  people  in  one 
town  or  country  for  })articular  goods  at  particular 
times,  this  value  is  held  to  be  the  market  price  at  the 
place  of  destination  at  the  time  when  they  should  have 
been  delivered.^  If  the  goods  are  negligently  delayed, 
the  owner  is  entitled  to  recover  the  los«  to  him,  caused 
b^"  a  fall  in  their  market  price  during  the  time  of  the 
delay.'' 

The    injuiy    complaineir    of    must    be,    it    should 


1  Mapterton  t-.  Mayor,  7  Uill,  Gl;  42 
Am.  Due.  38 ;  Wallace  r.  Ah.  Sam,  71  Cal. 
197;  GO  Am.  Uep.  rvii;  12  I'ac.  Uep.  46; 
Bridges  i-.  Lanbam,  14  Neb.  3G9;  46  Am. 
Uep.  121 ;  16  N.  W.  Uep.  704. 

2  Dean  v.  Hitter,  18  SIo.  182;  ^Nloore  v. 
Lawrence,  16  Fed.  Uep.  87;  Ke  Lavalctte 
V.  Wcndt,  76  N.  Y.  579;  31  Am.  Bep.  494. 

3  Story  Bail.  §  269. 

4  Henderson  r.  The  Maid  of  Orleans, 
12  La.  Ann.  SS'i;  Lewis  i'.  The  .Success,  18 
La.  Ann.  1;  Inirledew  v.  U.  Co.,  7(iray, 
66 ;  Black  v.  K.  Co.,  45  Barb.  40 ;  Brackett 
r.  McN'air,  14  Johns.  170;  7  Am.  Dec.  447; 
O'Connor  v.  Forster,  10  Watts.  418; 
Waril  r.  It.  Co.,  47  N.  Y.  29;  7  Am. 
Rep.  405;  Armory  r.  McGregor,  15  .Johns. 
23;  8   Am.    Dec.  205;  McGregor  r.  Kil- 

574 


gore,  6  Ohio,  358;  27  Am.  Dec.  260; 
Kalhborne  r.  Neal,  4  La.  Ann.  .W;);  r,0 
Am.  Dec.  57!t;  Shaw  v.  K.  Co.,  5  Rich. 
462;  57  Am.  Doc.  769;  Galena, etc.,  K.  Co. 
r,  Hae,  18111.  48S;  68  Am.  Dec.  57,">;  Jland 
V.  Ituynes,  4  Whart.  204;  'AA  Am.  Dec.  54; 
Dean  r.  Vaccaro,  2  Head.  4HS;  75  Am. 
Dec.  744;  Lnnrcnt  v.  Vaughn,  .fo  VI.  90; 
Lindley  r.  U.  Co.,  88  \.C.547;  The  Man- 
galore,  9  Saw.  71 ;  Texas,  etc.  U.  Co.  v. 
Nicholson, 61  Tex.  491;  Taylor  r.  Collier, 
126  Ga.  122;  Davis  i-.  K.  Co.,  1  llilt.  fii4; 
Wallace  I'.  Vigus,  4  Ulackf.  260;  I'erkins 
V.  K.  Co.,  47  .Me.  57H;  74  Am.  Dec.  607; 
Spring  V.  Haskell,  4  Allen,  112; 

a  CoUard  v.  It.  Co.,  7  II.  &  N.  79, 
Sisson  f.  It.  Co.,  IJ  Jlich.  489;  !mj  Am. 
Dec.  253;  Smith  v.  It.  Co.,  12  Allen,  631; 


CH.  XXIII.] 


DAMAGES. 


§345 


not  be  forgotten,  the  necessary  and  immediate  conse- 
quences of  the  breach.  This  principle  is  illustrated 
and  applied  in  the  great  case  of  lladlcy  v.  Ba.vciulak,^ 
one  of  the  leading  cases  on  the  measure  of  damages 
on  the  breach  of  a  cantract,  and  itself  an  action  against 
a  carrier  of  goods.-  The  rule  there  laid  down  is  that 
the  owner  is  entitled  to  recover  those  damages  only 
which  would  be  within  the  contemplation  of  the  p'  r- 
ties,  as  the  probable  result  of  the  breach.  When  goods 
are  given  to  a  carrier,  he  may  be  presumed  to  under- 
stand that  it  is  with  some  obj(H:t  that  they  are  given 
to  him,  that  he  is  to  convey  them  to  a  certain  place, 
and  so  convenience  and  benefit  the  sender  of  the  goods, 
and  he  therefore  understands  that  the  delivery  of  these 
goods  at  their  destination  will  result  in  profit  to  the 
consignor.  Such  profits,  therefore,  as  would  naturally 
arise  from  the  sale  of  goods  in  the  market,  are  recov- 
erable as  general  damages.  But  if  any  special  circum- 
stances are  communicated  to  the  carrier,  the  damages 
resulting  from  a  breach  which  both  parties  v.'ould  rea- 
sonably contemplate,  would  be  the  amount  of  injury 
which  would  ordinarily  follow  from  a  breach  of  con- 
tract under  these  special  circumstances  so  known  and 
communicated.  On  the  other  hand,  if  these  special  cir- 
cumstances were  wholly  unknown  to  the  carrier,  he, 
at  the  most,  could  only  be  supposed  to  have  had  in  his 
contemplation  the  amount  of  injury  which  would  arise 
generally,  and,  in  the  great  multitude  of  cases,  not 
affected  by  any  circumstances,  from  isuch  a  breach  of 
contract.^       The  expenses  tbat  the  owner  is  put  to  in 


90  Am.  Dec.  166;  Peet  v.  R.  Co.,  20  Wis. 
694;  91  Am.  Dec.  446;  Weston  v.  U.Co., 
64  Me.  376;  92  Am.  Dec.  553;  Demingv. 
It.  Co.,  48  N.  H.  455;  2  Am.  Rep.  267;  De- 
verenx  v.  l{iickley,34  Ohio  St.  16;  32  Am. 
Kep.  342 ;  St.  I.onis  etc.  R.  Co.  v.  Phelps, 
46  Ark.  4S5;  Kent  t'.  R.  Co.,  22  Barb. 
378;   Medbury  v.  R.  Co.  26  Barb.   664; 


Briggs  t'.  R.  Co.,  28  Barb.S615;  Jones  v. 
R.  Co.,  20  Barb.  633. 

1  6  Ex.  314. 

2  See  Lawson  Contr.  §  459. 

3  lladlcy  V.  Baxcndale,  supra;  Simp- 
son r.  B.Co.,  L.  U.  1  Q.  B.27T;  PacillcKx. 
Co.  V.  Darnell,  62  Tex.  639;  Uonston  etc. 
R.  Co.  V.  Jacksoij,  62  Tex.  209 ;  Foard  v. 

575 


'If 


§346 


DAMAGES. 


[DIV.  111. 


I    I 


CO 


-1* 


PI* 


replacing  the  goods,  are  also  allowable,  but  not  the 
vexation  and  inconvenience  which  he  suffers,  in  con- 
sequence of  the  carrier's  breach  of  contract.^ 

If  a  carrier  refuses  to  carrj'  goods  that  are  brought 
to  him  for  the  purpose  oF  being  carried,  the  damages 
to  be  assessed  will  be  regulated  by  the  amount  of  dam- 
ages actually  and  necessarily  incurred.-  ^Yhere,  how- 
ever, the  Avroug  is  of  a  malicious  character,  the  jury 
ma^'  award  exemplary  or  vindictive  damages.  Thus, 
if  a  carrier,  with  a  view  of  obtaining  a  monopoly,  or  of 
injuring  a  rival  eoni])aiiy,  refusos  to  cany  goods  which 
h<?  is  bcmnd  by  la.w  to  carry,  the  jury-  will  be  di' 
rected  to  use  their  discretion  in  ibis  mattter.-' 

§  346.  Measure  ofDimiagres. — Common  Carriers 
of  Passengers. — For  Breach  of  Contract. — AVhere 
the  action  is  for  the  breach  of  the  carrier's  contract  of 
carriage,  the  damages  are  limited  to  such  as  are  the  nat- 
ural and  proximate  consequences  of  the  breach,  such  as 
may  fairl}^  be  supposed  to  enter  into  the  contem])lation 
of  the  parties  when  they  ma<le  the  contract,  and  such 
as  might  naturally  be  expected  to  result  from  its  vio- 
lation.^    Thus,  if  the  carrier  violates  his  contract  by 


n.  Co.,  8  Jones,  225;  78  Am.  Dec.  277; 
Mather  !•.  K\.  Co.,  l.iS  Mass.  fw;  r>2  Am. 
Uep.  25S;  Wil.son  v.  U.  Co.,  0  CIS.  \.  S. 
&)2;  Tiiom.MS  eic.  Mfg.  Co.  i-.  K.  Co.,  62 
Wis.  Gi2;  51  .\in.  Uep.  72.');  22  N.  \V.  Uep. 
827;  Waiter,  (iilbert,  10 ("ush.  177;  (ireat 
West.  1{.  Co.  r.  Uedinnyne,  I. .  1{.  1  C.  I'. 
129.  Ill  a  Texas  case  where  nn  express 
company  received  a  packaRe  of  medi- 
cine wliich  the  agent  was  told  contained 
a  bottle  of  medicine  for  plaintiff's  wiic, 
Who  was  sick,  and  it  was  negligently 
deiajed,  it  was  held  that  he  could  re- 
cover for  both  physical  and  mental  suf- 
fering of  his  wife,  canHe<i  by  the  negli- 
gent failure  to  deliver  in  time.  I'aciflc 
Kx.  Co.  t'.  HIack,  27  S.  W.  Uep.  830  (Tex.) 
1  Cooper  r.  Young,  22  Ga.  '21')'.);  C8  Am. 
neo..512;  Foard  r.  K.  Co.,  8  Jones,  235; 
78  Am.  JJeo.  277 ;  Mather  r.  Kx.  Co.,  138 

576 


Mass.  55;  52  Am.  Uep.  258;  Waite  v.  Gil- 
bert, lOCush.177;  Nettles  r  1!.  Co., 7  Uich, 
l;»0:  ri2  Am  Dec.  4i)'J;  Ilaniliii  v.  It.  Co., 
1  II.  A-  X.  40S;  Ilausley  f.  H.  Co.,  20  3.  K 
Uep.  r,->H(S.  (;.). 

•-'  (Jalcna  etc.  U.  Co.  v.  Kile,  18  111.  488; 
GS  .\m.  Dec.  574;  Honslon  etc.  U.  Co,  v. 
Smith,  n.3  Tex.  HTi;  Mich.  etc.  U.  Co.  i-. 
Carter,  KUnd.  104. 

■•!  Urowne  Carr.  §  08!);  ('rouch  f.  R.  Co. 
25L.  J.  Kx.  137;  Hell  v.  U.  Co.,  4  L.  T. 
(N..S.)  293;  Goddard  v.  U.  Co.,  57  Me. 
202. 

4  Murdock  v.  R.  Co.,  1;1.S  Mass,  15; 
Quiniby  v.  Vanderbilt,  17  N.  Y.  ,306; 
Houston  etc.  R.  Co.  r.  Hill,  lex.  .381; 
61  Am.  Rep.  i;42;  Georgia  R.  Co.  v.  Hay- 
den,  71  (ia.  51S;  51  Am.  Uep  274;  Hamlin 
V.  R.  Co.,  1  H  &  N.  408;  HI.  etc.  U.  Co.  v. 
Dcmara,  44  111,  29'2. 


OH.  XXIII.] 


DAMAGES. 


§346 


not  carrying  the  passenger  to  his  destination,  the  lat- 
ter is  entitled  to  recover  compensation  for  the  incon- 
venience, loss  of  time  and  expense  of  reaching  there 
by  other  meane,^  because,  "if  a  can-ier  engages^to  put 
a  person  down  at  a  given  place,  and  does  not  put  him 
down  there,  but  puts  him  down  somewhere  else,  it 
must  be  in  the  contemplation  of  everybody  that  the 
passenger  put  down  at  the  wrong  place  must  get  to 
the  place  of  destination  somehow  or  other.  If  there 
are  means  of  conveyance  for  getting  there,  he  may  take 
those  means,  and  r^  "le  the  carrier  responsible  for  the 
expense;  but  if  there  are  no  means,  the  carrier  must 
compensate  him  for  the  personal  inconvenience  which 
the  absence  of  those  means  has  necessitated."- 

But  it  is  not  the  necessary  consequence,  or  the  prob- 
able consequence,  that  the  person  riding  in  another  ve- 
hicle to  his  destination  will  suffer  an  injury  on  it,"*  or 
Avalking  to  his  destination,  there  being  no  other  means 
of  carriage  at  hand,  will  contract  a  cold  or  other  ill- 
ness or  injury,-*  and  therefore,  for  damages  of  this 
kind,  the  carrier  cannot  be  held  liable,  bcn-'ause  "it  is 
not  the  necessary  consequence;  it  is  not  even  the  prob- 
able consequence  of  a  person  being  put  down  at  an 
improper  place,  and  having  to  walk  home,  that  he 
should  sustain  eithti'  personal  injury  or  catch  a  cold.'"^ 


1  Laws.  Rights,  Rem.  &  Pr.,  §  2t)35; 
Trigg  V.  U.  Co.,  74  Mo.  147;  Penn.  11.  Co. 
f.  Aspell,  '23  I'fi.  St.  147;  d'i  Am.  Dec.  323; 
Hamlin  v.U.  Co.,  5  11.  &  -N,  408;  Indian- 
apolis etc.  li.  Co.  V.  Hirney,  71  111.  3B1; 
The  Zenobia,  1  Atl.  Adm.  80;  The  Cana- 
dian, 1  Brown.  Adm.  11 ;  Porter  v.  The 
New  England,  17  Mo,  2'.t0;  Renson  v. 
New  Jersey  Transp.  Co.,  9  Bosw.  412; 
Yonge  V.  Pacific  Mail  Steam.  Co.,1  Cal. 
863. 

a  Hobbs  V.  R.  Co.,  L.  R.  10  Q.B.  111. 

3  Hobbs  V.  11.  Co.,  supra. 

4  Hobbs  V.  It.  Co.,  supra;  Trigg  v.  R. 
Co.,  74  Mo.  147;  Francis  v.  St.  Louis  etc. 

3{J 


Co.,  5  Mo.  (App.)  7;  Mnrdock  v.  R.  Co., 
lri;i  Mass.  15;  Cinn.  etc.  R.  Co.  v.  Katon, 
post;  Indianapolis  etc.  R.  Co.  v.  Birney, 
71  111.  3;il. 

5  Uobbs  V.  R.  Go. ,sui>ra.  But  see  WiU 
liama  v.  Vanderbilt,  28  N.  Y.  217;  84  Am. 
Dec.  ;i;!3,  where  tlie  passenger  was  to  be 
carried  from  New  i'ork  to  California  via 
Nicaragua,  and  through  the  negligence 
of  the  carrier  he  was  detained  there. 
In  an  action  for  the  breach  of  the  car- 
rier's contract  damage  was  allowed  for 
sickness  contracted  while  waiting  on 
the  isthmus  since  snch,  on  account  of 
the  natural  unhealthiness  of  that  land, 

577 


§347 


DAMAGES. 


[DIV.  III. 


CO 

TO 

CO 


Nor  in  such  an  action  can  tlie  passenger  recover  for 
mental  pain  and  anxiety  of  mind.^ 

§  347.  In  Actions  of  Tort. — But  as  we  have  also 
seen,  it  is  a  dutj'  of  a  carrier,  as  well  as  an  implied  eon- 
tract  upon  his  part,  on  his  receiving  a  passenger  either 
with  or  without  a  ticket,  to  carry;  and  if  he  fails  to 
do  so  in  consequence  of  negligence  or  misconduct  upon 
his  own  part,  or  upon  that  of  his  servants,  he  will 
be  liable  to  an  action  at  the  instance  of  the  person  in- 
jured, which  may  either  be  in  assumpsit  on  the  implied 
contract  for  safe  conveyance,  or  in  case,  as  for  the 
tort.  Therefore,  if  the  action  is  in  tort  for  negligently 
leaving  a  passenger  at  some  place  not  his  destination, 
it  is  held  that  recovery  may  be  had  for  illness  brought 
on  by  the  passenger  walking  to  his  destination;-  or  for 
fright,  occasioned  by  his  being  chased  b}'  dogs  on  the 
road,-^  for  it  is  well  settled  that  one  Avho  commits  a 
trespass  or  other  Avrong  is  liable  for  all  the  damage 
Avhich  legitimate!}'  flows  directly  from  such  trespass  or 
wrong,  whether  the  specific  damage  might  have  been 
foreseen  bv  the  Avron<;<loer  or  not.* 

Tlie  measiire  of  daniiiges  in  actions  of  tort  for  per- 
sonal injuriois  not  cainsiiig  (h^atli,  inclnde'S  conijiensation 
for  bodily  and  mental  pain  and  suffering,''  both  up  to 


must  have  boon  within  the  contempla- 
tion of  tlie  parties  as  a  result  of  bucIi  a 
deiiMitioii. 

1  Wulsh  v.R.  Co.,  42  Wis.  28;  24  Am. 
Ucp.  37f>;  TriKfr  v.  U.  Co.,  74  Mo.  147. 

•J  Brown  V.  K.  Co.,  rA  Wis..  342;  41  Am. 
Bup.41,  11  N.  W.  Hep.  :i5rt,i»il,  where  the 
passenger  was  a  woman  ami  the  exer- 
tion brought  on  a  iniscairiiij^u  and  sick- 
ness. Intt'rnat.  elc.  U.  Co.  f.  Terry,  G2 
Tex.  38n;  r,0  Am.  Hep.  52;t;  Cinn.  etc.  11. 
Co.  V.  K:iton,  <J4  Ind.  474;  48  Am.  Itep. 
179;  Murdock  c.  U.  Co.,  US  M.-ihs.  15; 
Lake  Krie  etc.  U.  (.'o.  v.  Vox,  8S  Ind.  ,S81 ; 
Yorton  v.  R.  Co.,  62  Wis.  367;  21  N.  W. 

578 


Uep.  filfi;  23  Id.  401;  Drake  v.  Kiely,  93 
I'll.  St.  4'.t2.  '  oiitra,  I'lill.  I'al.  C.irCo.  i-. 
Harker,  4  Colo.  344:  34  Am.  Ui'p.  89,  crit- 
icised in  IJrinvn  v.  It.  Co  ,  supra. 

3  Cinn.  etc.  H.  Co.  v.  Katon,  ante. 

4  .See  ca-es  citetl  in  IJrown  r.  U.  Co., 54 
Wis.  342;  41  Am.  Uep.  41;  11  N.  W.  Uep. 
.356,  1)11;  Urown  v.  U.  Co.,  fi6  Mo.  ^H; 
Drake  c.  Kiily,  93  I'a.  .St.  492;  Halt,  etc 
U.  Co.  V.  Kemp,  fil  Md.  74. 

t>  .See  cases  in  next  note  and  Lawson, 
UiKhts,  Item.  &  rr.,  §  1218 ;  McKinley  v.  U. 
Co.,  44  la.  314  ;  Morse  i-.  U.  Co.,  10  Harb. 
621;  Ohio  etc.  U.  Co.  r.  Dickersoii,  59 
Ind.  317;  Whalen  v.  U.  Co.,  60  Mo.  323; 


•IV.  III. 

f'er  for 

ve  also 
ed  eon- 
p  either 
fails  to 
L-t  upon 
he  will 
[•son  in- 
inipliod 
for  the 
ligontly 
inatiou, 
broil  <;ht 
;-  or  for 
^  on  the 
umits  a 
damage 
spass  or 
A'e  been 

for  per- 

Misatioii 

h  up  to 


f.  Kiely,  93 
1.  C  .jrCo.  V. 
p.  89,  crit- 
jird, 
1,  aittf. 
1  V.  \L  Co., 54 
X.  \V.  Uep. 
f.6  Mo.  5S8; 
«;  llult.  etc 

and  I,awson, 
cKinley  i'.  It. 
Co.,  10  Hiirl). 
)ickersoii,  59 
GO  Mo,  323; 


CH.  2CXIII.] 


DAMAGES. 


§347 


the  bringing  of  the  suit  and  wliirli  it  is  reasonably  cer- 
tain mu^t  necessarily  occur  in  the  future;^  compensa- 
tion for  loss  of  earnings  since  the  injury,  and  for  loss 
of  future  earning  power  ;=  eomponsation  for  expenses 
of  medical  treatment  and  nursing,  either  paid  for  or 
which  the  passengei"  is  nndei-  an  obligation  to  pay,** 
and  for  other  expenses  necessarily  following  the  in- 
jury.* 

In  a  husband's  suit  for  injuries  to  the  wife,  his 
damages  are  compensation  for  the  loss  of  her  society 
and  services,  and  the  necessary  expenses  of  her  medi- 


Ransom  r.  R.  Co.,  15  N.  Y.  415;  Illinois 
etc.  K.  Co.  r.  Stables,  62  111.  313;  Porler 
t'.  R.  Co.,  71  Mo.  6G;  Jones  v.  The  Cortez, 
17  Cul.  487;  79  Am.  Dec.  142;  Muldowney 
11.  R,  Co.,  36  la.  462;  Fairchild  v.  Cal. 
Stage  Co.,  13  Cul.  599.  Whether  mental 
anguish  where  there  is  no  bodily  in- 
jury—snch,  for  example,  as  arises  from 
the  indignity  of  ejection  from  a  train 
without  violence— is  an  element  of  com- 
pensator!/ damages,  is  disputed.  In  a 
Nevada  case  afterwards  overruled  it  is 
said;  "How  can  such  damages  be  esti- 
mated in  money?  The  mental  agony  of 
a  timid  woman  would  be  entirely  diiter- 
entfrom  that  of  a  bold  man.  No  two 
cases  could  be  weighed  in  like  scales. 
To  properly  estimate  such  a  cause  of 
damage,  the  door  must  be  openeii  to  the 
realms  of  philosophy,  physiology,  and 
pgycliology."  In  Thompson  on  Carriers 
it  is  said  that  "the  same  remarks  would 
apply  to  damages  awarded  for  bodily 
pain.  That  injuries  done  can  have  no 
adequate  redress  in  money,  or  tliat  dam- 
ages may  be  diflltult  of  estimation,  is  uo 
reason  why  pecuniary  relief  may  not  be 
grunted  aa  a  compensation,"  §  23, 
citing  the  following  cases  as  holding 
the  allirmative  of  the  proposition,  JIc- 
Kiuluyr.  R  Co.,  44  la.  314;  Chicago  etc. 
R.  Co.  f.  Flagg,  43  111.  364;  Cruker  v.  R. 
Co.,  36  Wis.  657;  Ransom  v.  R  Co.,  15  N. 
Y.  41.1;  Sherley  V.  Billings,  8  Hush,  147; 
Paine  v.  R.  Co.,  45  Iowa,  569;  Hamilton 
r.  R.  Co.,  53  N.  Y  25;  s.  c.  48  How.  Pr.  50; 
Coleridge,  J.,  in  Blako  v.  R.  Co.,  18  Q.  15. 


9.»;  Masters  v.  Warren,  27  Conn.  293; 
Seger  v.  IJurkhamsted,  22  Conn.  290; 
Canning  v.  WiUiarastown,  1  Cu>h.  451. 
See  contra,  Johnson  v.  Wells,  6  Nev.  2'24 
(oveiruled  in  Quiirley  v.  R.  Co.,  11  Nev. 
350) ;  Smith  v.  R.  Co.,  23  Ohio  St.  10.  And 
see  Allen  v.  Camden  etc.  Steam.  Co.,  46 
N.  J.  Iv.  198. 

1  Hopkins  r.  It.  Co.,  ,SG  N.ll.  9;  I>alet>. 
R.  Co.,  lUun,  141;  Klein  v.  Jewett,  26 
N.  J.  Eij.  474;  Jlemphis  etc.  11.  Co.  v. 
Whitlleld,  44  Miss.  406;  Curtis  v.  U.  Co., 
20  IJai-b.  282,  18  N.  Y.  5:!4;  Caldwell  v. 
Murphy,  1  Duer,  233, 11  N.  Y.  416;  Matte- 
son  V.  It.  Co.,  62  liarb.  364  ;  Holyoko  v.  R. 
Co.,  4S  N.  II.  511 ;  iilack  l:  It.  Co.,  10  La. 
Ann.  33;  Frink  c.  Schroyer,  18  111.416; 
Strohm  i\  K.  Co.,90  N.  Y'.  31)5;  Delie  i'. 
U.  Co.,  51  Wis.  400;  8  N.  W.  Uep.  265; 
Fry  r.  11.  Co.,  45  la.  416;  Pitts,  itc.  U. 
Co.  t'.  Andrews,  39  Md.  .329;  McDonald 
V.  R.  Co.,  26  la.  124. 

2  Phillips  V.  K.  Co.,  4  Q.  15.  Div.  406; 
Penn.  11.  Co.  r.  Books,  57  Pa.  St.  3.;9;  Mc- 
Kinley  v.  It.  Co.,  44  la.  314;  Wade  r. 
Leroy,  20  How.  34 ;  Walker  n  U.  Co.,  63 
Barb.  260.  But  it  the  occupaion  in 
which  he  is  pngaged  is  an  unlawful  one, 
the  loss  of  it  is  no  ground  tor  damages, 
no  matter  how  lucrative  it  may  have 
been.  Jacques  v.  It.  Co.,  41  Conn.  61 ;  19 
Am.  Rep.  483. 

3  Patt.  Ily.  Ace.  L.,§393. 

4  The  Canadian,  1  Brown's  Adm.  11; 
Ind.  etc.  R.  Co.  v.  Birney,  71  111.391; 
Francis  v.  St,  Louis  Trans.  Co.,  S  Mo. 
App.  7. 

579 


fl 


§347 


DAMAGES. 


[DIV.  Ill, 


i 


c: 

CO 


Cm 

So 


eal  treatment;'  if  the  suit  is  by  the  wife  for  personal 
injuries  to  herself,  these,  however,  are  not  recoverable, 
but  only  the  physical  injury  done  to  her  can  be  re- 
garded.- Where  the  suit  is  by  parent  or  master  for 
injury  to  a  child  or  servant,  the  measure  of  damage 
is  compensation  for"  loss  of  service  during  the  minority 
of  the  child  or  the  jjeriod  of  Venice  andi  the  necessary 
expenses  of  medical  treatment."' 

The  law  makes  it  incumbent  upon  the  plaintiff  to  use 
ordinary  care,  and  take  all  reasonable  measures  within 
his  knowledge  and  power  to  avoid  the  loss,  and  render 
the  consequences  as  light  as  may  be;  and  it  will  not 
permit  him  to  recover  for  such  losses  as  by  such  care 
and  means  might  have  been  i)reveuted.*  But  it  does 
not  affect  the  damages,  or  benefit  the  carrier  that  the 
passenger  had  been  insured  against  the  accident,  and 
had  received  the  benrflt  of  his  insurance;'"'  or  that  he 
had  received  the  benefit  of  a  charitable  subscription 
made  for  him;"  or  that  his  employer  continued  to  pay 
him  his  salary,  notwithstanding  his  disability." 

But  the  defendant's  act  must  have  been  the  proxi- 
mate cause  of  tlK>  injury.  Thus,  in  one  case,  the 
plaintiff,  a  passenger,  was  carried  beyond  his  station 
on  a  dark  night,  ami  on  alighting,  was  mislufornuMl 
by  the  conductor  as  to  where  he  was,  but  being  ac- 


1  Patt.  Uy.  Ace.  L.,  §  H08,  citing  King  t'. 
Thompson,  87  I'a.  St.  SBS:  !'cnn.  U.  Co. 
f.  (Joodman,  02  Pa.  '-l.  329  ;  Pack  v. 
Mayor,  3  Oomst.  489;  Ncir  v.  U.  Co.,  12 
Mo.  tApp.)  35;  Oregin  v.  11.  Co.,  83  N.  Y. 
595. 

2  Patt.  Uy.  Ace.  L.,  §  398,  citing  inter 
alun  liiilt.  etc.  U.  Co.  v.  Kemp,  61  Md. 
74;  FulltT  V.  K.  Co.,21  Conn.. 55";  Klein 
V.  Jewett,26  N.  Y.  474;  Tattle  i-.  K.  Co., 
42  la.  518. 

3  Patt.  Uy.  Ace.  L.,  §  399,  citing  Penn. 
11.  Co.  V.  Kel'y,  31  Pa.  St.  372;  Frick  v. 
K.  Co.,  75  Mo.  542;  Smith  v.  K.  Co.,  55 
Mo.  65G ;  St.  Louis  etc.  R.  Co.  v.  Freeman, 
.^,0  Ark.  41. 

580 


*  Klntts  r.  R.  Co.,  75  Mo.  642;  Sauter  v. 
U.  Co.,  or,  N.  Y.  !)0;  Lyons  v.  U.  Co.,  ■')7  N. 
Y.  4H9;  Allendor  v.  H.  Co.,  37  la.  204; 
Onlf  etc.  li.  Co.  r.  Coon,  09  Tex.  7;tO;  7 
S.  W.  Kcp.  492;  Owens  v.  R.  (•o.,M  Fed. 
Rep.  715;  Xashville  etc.  R.  Co.  r.  Smith, 
G  tlcisk.  174. 

s  Harding  r.  Towehend,  43  Vt.  676;  5 
Am. Rep.  304;  Hradburn  r.  R.«().,L.  R. 
10  Kx.  1 ;  Rait.  etc.  R.  Co.  v.  Wightman, 
29  Oratt.  431. 

6  NorriBtown  v.  Mayer,  07  Pa.  St.  ,350. 

7  Ohio  etc.  R.  Vo.  v.  Dickcrson,  .'ill  Ind. 
317;  Mcljinghlin  v.  Corry,  77  Pa.  St.  109; 
18  Am.  Rep.  432. 


^"imswaafammimmBm 


OH.  XXIII.] 


DAMAGES. 


§347 


quainted  with  the  neighborhood,  he  soon  discovered 
his  mistake.  If  he  had  alighted  where  he  was  told  he 
was,  it  was  his  intention  to  follow  the  track  and  cross 
a  culvert,  but  he  pursued  his  way,  intending  to  cross 
another  culvert  which  he  fell  into  and  was  hurt.  The 
carrier  Avas  held  not  liable.^  In  another,  through  a 
collision  of  trains,  a  passenger  was  injured,  and  be- 
coming thereby  disordered  in  mind  as  well  as  body 
some  eight  months  after,  committed  suicide.  "Ilis  in- 
sanity," said  Mr.  Justice  Miller,  "as  a  cause  of  his  final 
destruction,  was  as  little  the  natural  and  probable  re- 
sult of  the  negligence  of  the  railroad  officials,  as  his 
suicide,  and  each  of  these  are  casual  and  unexpected 
causes,  intervening  between  the  act  which  injured 
him  and  his  death."- 

It  is  always  a  difficult  thing  to  compute  what  is  a 
proper  amount  to  allow  a  plaintiff  who  has  suffered 
a  personal  injury.  As  Mr.  Browne''  puts  it,  unlike 
goods  a  man  has  not  a  cost  price  and  a  marketable 
value,  and  in  many  cases  the  injuries  done  may  be 
irreparable  by  any  money  payment.  What  amount  of 
money,  for  example,  can  be  compensation  for  the  loss 
of  an  eye,  or  for  the  loss  of  both  legs?  The  jury  must 
be  left  to  decide  the  matter,  and  with  their  verdict 
the  court  will  not  interfere  merely  because  they  may 
think  that  if  they  had  been  on  the  jury  they  would 
have  given  more  or  less,  as  the  case  may  be;*  on  the 


1  Lewis  V.  U.  Co.  54  Mich.  55;  52  Am. 
Rep.  'W,  19  N.  W.  Ucp.  74t;  Henry  v.  U. 
Co.,  76  Mo.  2K8;  l.'l  Am.  Hep.  762.  But 
where  ua  aged  womun  was  put  otf  at 
night,  at  a  utution  which  was  ueilher 
open  nor  lighted,  and  where  there  was 
no  one  to  give  her  information  as  to 
where  she  might  obtain  shelter,  and 
she  wandered  away  from  the  depot 
in  search  of  the  highway,  and  return- 
ing, about  an  hour  afterwards,  fell 
down  a  flight  of  steps  on  the  premises, 


it  was  held  that  it  was  proper  to  submit 
the  question  to  the  jury  wlietlier  tlie  ab- 
sence of  light  at  the  depot  or  of  a  per- 
son to  give  her  information  was  the 
proximate  cause  of  the  injury.  I'atten 
V.  11.  Co.,  32  Wi!-.  524. 

2  Schelfer  v.  H.  Co.,  15  Otto.  249. 

3  Carr.  §  708. 

4  Phillips  V.  R.  Co.,  L.  R.,  5  C.  P.  Div. 
282;  Danville  etc.  K.  Co.  v.  Stewart,  2 
Met.  (Ky.)  112;  McKiuley  v.R.  Co., 44  la. 
322;  24  Am.  Rep.  748;  Maher  t-.  R.  Co.,  67 

581 


'f 


i; 


8  :m8 


DAMAGES. 


[niV.  III. 


! 


CO 

c: 

..^ 

*"» 

■:rj 
CO 

■• -t 


other  liiiiid,  the  ((nirLs  will  interfere  whore  tHo  dam- 
aji'es  allowed  by  the  jury  are  so  manifest l.y  unjust  and 
disproportionate  as  to  show  that  the  jnr.v  have  been 
misled  eitlier  by  passion,  prejudiee,  partiality,  or  mis- 
ajjprehension.' 

Where  the  injuries  cause  death,  tlie  statutes  au- 
thorizin;;  such  actions  in  many  of  the  States,  limit  the 
amount  of  recovery,  and  expressly  declare  the  pei-sons 
for  whose  benefit  they  may  be  prosecuted. 

§  348.    Exemplary  or  Punitive  Daniaffos.— What 

ai'e  called  exemplai-y,  ]»unitive,  vindictive  damaj^es, 
or  "smart  money,"  may  be  awarded  by  the  jury  in 
cases  of  fraud,  malice,  such  m',i;li};'enco  as  indicates  a 
reckless  indilTerence  to  consequences,  op])ressiou,  in- 
sult, rudeness,  ca!)rice,  willfulness,  or  other  causes  of 
n<;};ravation  in  the  act  or  omission  causin<r  injury. 
They  are  inflicted  beyond  the  <-ompensation  to  which 
the  plaintiff  is  entitled,  as  a  i)unishment  to  the  wi'ouj;- 
doer,  an<I  as  an  exampli.'  to  others;'-  and  coiixu'atiouK 


N.  V.  r)2;  Cliicngo  etc.  1{.  Co.  r.  I'ondroiii, 
r>l  III.  H:i.f;  MoiilKomciycli.  It  Co.  r  lior- 
inK,r>l  (ia  f.S'.';  WliHlcri  r.  R.  Co., (10  Mo. 
32.t;  l•'a^i^ll  r.  liciKli',  II  (;r:itl.  il.t?. 

1  Ti'iri!  Il.iiile  etc.  U.Co,  c.  V.-matta, 
'il  111.  Ihh;  (iraliaiii  r.  U.  ('o.,(;r,  Mo.  W.M; 
irnioii  I'acillc  I!.  Co.  ('.  II, mil,  7  Kan. 
,^S(l;  .Missouri  etc.  K.  Co.  v.  WcaviT,  10 
Kan.-I.li'i;  Ni;w  Orleans  etc., Co.  c.  llurHt, 
Mfi  MIsM  Ci'iO;  New  Orleans  etc..  K.  Co.  r. 
•Stntliain,  42  Miss.  (;ii7 ;  Dii  Lauraiisr.  U. 
Co.,  15  Minn.  4'.l;  (ieofKiaetc.  li.  Co.  c.  Mc- 
(/'Hr(ly,4."><iii.  2'sH;  .MonlKomeryele..  U.Co. 
V.  lt(>niiK,.11  <iii..'iS-';  ColliiiH  r.  It.  Co.,  Vl 
Uarlf.  4'.t2;  Clapp  v.  It.  Co.,  Ill  llarb.  4i;l; 
FariHli  r.  IteiKle,  11  (Jialt.  C'.C  ;  Cliic.iKO 
etc.  U.Co.  f.  Cinlllii,  <;s  111.  4;i'.»;  riillinan 
etc.  Co.  c.  l{t'e(l,7r>  111.  I'::,;  Chicago  tte,. 
11.  Co.  V.  McKeuii,  40  111.  218;  .Mobile 
etc.  It.  Co.  r.  A.shcraft,  4s  Ala.  \r>;  Cen- 
tral It.  Co.  c.  .'^mitll,  7i;tia.  2ii;i;  2  .\mi.  St. 
Ueii.  ;U  ;  III.  etc.  It.  Co.  r.  CiinniUKham, 
67111..Hir>. 

2  I.,uws.  IliKlits,  Ileui.  &I'r.,§  121U;  111. 

582 


etc.  U.  Co.  V.  Welch,  M  111.  1S4 ;  Murphy 
V.  It.  Co., 211  Conn.  4;i(l;  Kilrlnian  r.  ,Sl. 
I,oiils  Tian.s.  Co.,  ,1  Mo.  (,\p|).)  .loit; 
ll.irn  V.  .McCailjrlian,  32  .Mi-s.  17;  New 
Orleans  etc.  li.Co.  r.  Hurst,  iiH  .Mi'-n.  flGO; 
(iraliam  r.  It.  Co,,  (Ki  .Mo.  ,'>:!(;;  .New  Or- 
leanK  etc.  It.  Co.  r.  Stathani,  42  IMihh. 
f.l>7;  I'eck  r.  Neil,  !t  .McLean  2J;  I'enn. 
It.  Co.  r.  IJoolvH,  ri7  I'a.  St.  8:«);  Calilwell 
?•.  New  .ler.sey  Steam.  Co.  47  N.  V.  282; 
CliicHKo  eic.  It.  Co.  r.  Williams,  CI  111. 
IHTt;  T)h:  .\niiable  Nancy,  H  W'lu^at.  645; 
Day  r.  Woodworth,  l:!  How.  ;ii;:i;  Itiiil- 
rond  Co.  r.  t^iiKley,  21  llow.2il2;  Mil- 
waukee etc.  It.  Co.  r  Arn>  .111  C.  S.  489; 
Itailway  C'o.  v.  Hiiines,  11,')  V.  S.  f>l2; 
Itarry  r.  I'-ilniiimls,  11(1  Iii.  riTM;  Itailway 
Co.  (•  llarri.H,  1J2  Id.  00',);  Itailway  Co.  r. 
Ueckwilh,  1211  Id.  20.  It  the  employees 
of  a  railroad  willfully,  recklessly,  <.r  ca- 
priciously fail  to  Htop  a  train  when  sig- 
nalled, exemplary  daniuffcs  are  recover- 
able.   Wilson  I'.  It.  Co.,  6;i  .Mias.  ;i5'2. 


•  i\ 


cii.  xxiir.] 


DAMAGES. 


^?A8 


jirc  no  more  oxonipi  (lum  individunls  in  this  rcsix'ct.' 
It  is  licld  in  tlu-  United  States  Siiin-cnic  Court,  iind  in  ji 
few  States,  tiiaL  a  railroad  is  not.  liable  to  jninilive 
<lania<;('s,  because  its  servant's  conduct   on  the  train 
was  wanton  and  opjtressive,  nnlesN  it  is  shown   that 
he  was   known   to  the  coni])any   to  be  an  unsuitable 
person,  or  that,  it  ]»articii)ated  in,  a|>|iroved  or  ratilie<l 
his  treatment   of  the  passenj;('r'- — this  on   the  ^I'ound 
that  such  dauiaj;('s  being  awarded  as  ]»unishnient  to 
the  olTender,  and  to  ])revent  the  repetition  of  tlie  wronj; 
conduct,  re(|uire  tluit  the  f;'nilty  intent  shall  be  that 
of  the  defendant,  and  not  that  of  his  a,i;('nt  or  servant. 
In  other  Slates  such  direct  authorization  or  subse(i|uent 
ratilication  is  not   necessary,  because  the  corporation 
"<an  act  only  through  natural  i)ersous,  its  ollicers  and 
servants,  and  as  it  of  necessity  cotuniits  its  trains  ab- 
solutely to  the  charge  of  ollicers  of  its  own  ap])oint- 
nient,   and    ])assengei's   of   lu'cessity   connnit   let    them 
theii'  safety  and  comfort  ///  InniNilK,  under  conditions 
of  such  ]>eril  and  subordination;  the  whole  ])()wer  and 
authority  of  tiie  corpoi-ation,  pro  lidv  rice,  is  vested  in 
these  ollicers,  and,  as  to  passengers  on  board,  they  are 
to   be   considered    as   the   cori)oration   itself;  and    the 
conse(pH'nt  authoi*ity  ami  i'esi)ousibility  are  not  gen- 
erally to  be  straitened  or  impaired  by  any  arrange- 
ment between  the  c<n'poration  and  the  olficers,  the  cor- 
poration being  resi)onsible  for  the  acts  of  the  ollicers 
in  the  conduct  and  government  of  the  train,  to  the 


1  Tlioinp.  Ciirr.  Cass.  §  575,  cilinjf 
MalccL'k  I',  li.  ('o.,ri7  Mo.  17;  (jlr;iliam  r. 
K.  Co.,  m  Mo.  MG;  I'itls.  etc.  K.  Co.  r. 
Sliip.Kur,  19  Ohio   St.   llil ;  Alleiilon  ttc. 


riilod  in  Crnker  r.  K.  Co  ,  8C  Wis.  657); 
'I'lirncr  v.  II.  Co.,  1(4  Cal  5'.U;  Ackcrson 
V.  n.  Co.,  .S2  N.  J.  I,.  2.')-l,  200 ;  Oom8  v.  11. 
Co., .'ill  Mo.  27.    lletaiiiiiiK  the  Hervnnt  in 


It.  Co.  ('.  Dnnn,  lOOhio  St.  102;  Culdwcll       the  Hervice  of  the  coiponition   is  cvi- 


I'.  N.  J.  Steam.  Co.,  47  N.  Y.  2S2. 


(lence  of  ratilleation.    I'erkins  r.  It.  Co. 


2  Luke  Shore   etr,.   It.  Co.  r.  Prentice,  55  Mo.  201 ;  (Jrahatn  v.  It.  Co.,  (JO  Mo.  5;^r.; 

147      U.      S.    141;     Now     Orleans     etc.  Goildaiii  r.  It.  f;o.,  57  Me.  202;  CneRhorn 

K.    Oo.    r.    AUbritton,    .•fS     Miss.    242;  r.  It.  CU).,  5G  N.  Y.  44;  llagan  r.  It.  Co.,  3 

Hagan  v.  It.  Co.,  a   K.I.  88;  Milwaukee  It.  I.  b8. 
etc.  It.  Co.  V.  Finney,  10  Wis.  388  (over- 

583 


§349 


DAMAGES. 


[div.  ni. 


passengers  traveling  by  it,  as  tlie  officers  would  be  for 
themselves  if  they  were  themselves  the  owners  of  the 
road  and  train."' 


CO 

■::*■'* 
<:; 


r" 


§  349.     Measure  of  Damages.— "'^legraph  Com- 

l>anies.  — It  was  in  an  action  against  a  telegrai)h  cdin- 
pany  that  the  rule  as  to  the  measure  of  damages  for 
breach  of  a  contract  was  so  concisely  stated  by  Karl, 
J.,  which  rule  has  been  adopted  by  me  in  njy  work  on 
Contracts:-  "The  damages  nnist  be  such  as  the  parlu-s 
may  fairly  be  supi)ose«l  to  have  conttMuplated  when 
they  made  the  contract.  Parties  entering  into  con- 
tracts usually  contemplate  that  they  will  be  per- 
formed, and  not  that  they  will  be  violated.  They  very 
rarely  actually  contemplate  any  damages  \\liich  woidd 
ilow  from  any  breach,  and  very  frequently  have  not 
sutlicient  information  to  know  what  such  danja<ies 
would  be.  •  »  »  A  party  is  liable  for  all  the  direct 
damages  which  both  i)arties  to  the  contract  would 
have  contemplated  as  tlowing  from  its  breach,  if,  at 
the  time  the}'  entered  into  it,  they  had  bestowed  pro])er 
attention  upon  the  subject,  ;i!t:l  had  been  fully  in- 
formed of  the  facts."''  Reiaembe  ing  that  as  between 
the  sender  and  r<'ceiver  of  a  t(  iegraph  message,  a:.y 
loss  occasioned  by  a  change  in  its  terms,  or  a  uon-de- 


1  Haas  J'.  K.  Co.,  3G  Wis.  ^SO;  niinson 
f.  U.  Co.,  02  Me.  84;  ChiciiKO  etc.  U.  Co. 
r.  HLMTiUK,.'>7  111.  nil;  .Icff.  etc.lt.  Co.  v. 
KoK<'is,HH  Inil.  UK;  ISalt.  etc.  U.  Co.  r. 
Blocker, 27  Md.  277;  Quigley  r.  U.  Co.,  U 
Nev.H.'JO;  Hopkins  r.  U.  Co.,  3r>  N.  U.  9; 
Railroad  Co.  v.  Dnnn,  lit  Ohio  St.  1G2; 
Ijouisvillo  etc.  U.  Co.  v.  Whitman, 7'.l  Ala. 
J28;  Goddnnl  f.  K.  Co.,  B7  .Me.  202,  the 
court  saying:  "tt  is  our  jndKnnent, 
therefore,  that  actions  nKuinst  corpora- 
tions for  the  willful  an<l  malicious  acts  of 
their  agents  and  servants  in  executing 
-Ijc  bnsinc'HS  of  the  corporation  should 
not  form  exceptions  to  the  rule  allowing 

584 


exemplary  damages.  On  the  contrary, 
we  think  this  is  the  very  class  of  cases, 
of  all  otherH,  where  it  will  ilo  the  most 
good,  and  wheie  it  in  the  most  needed." 

'i  l.awH.  Contr.  §  4('>2. 

■i  Leonard  c.  Tel.  (.'o.,  41  N.  Y.  544;1 
Am.  Rep.  447;  and  see  True  r.  Tel.  Co., 
60  Me.  it;  11  Am.  Kei).  ISC;  West.  U.  Tel. 
Co.  r.  Oraham,  1  Col.  230;  9  Am,  Uep. 
130;  Sf|Uirer.  Tel.  Co.,  98  Mass.  232;  93 
Am.  Dec.  157;  .'^mith  r.  Tel.  Co.,  83  Ky. 
104;  4  Am.  .St.  Kcp.  127;  (Gannon  c.  Tel. 
Co.,  100  X.  C.  300;  6  Am.  St.  Uep.  f>90;  « 
S.  K.  Ifcp.  731. 


ClI.  XXIII.] 


DAMAGES. 


§349 


livery  witliiu  a  rcusonablo  lime,  Ihi-ouj;!!  the  notrligcncc 
of  tho  toli'grapli  toinpany,  falls  upon  hini  who  those 
that  moans  of  conimunitation,  aud  thereby  made  the 
eouipany  his  a};eii(;'  the  measure  of  (la,ma<;('s  iu  the 
larjre  majority  of  ciu^w,  is  not  hard  to  airive  at,  in 
actions  by  the  person  dama<«cd  jioainsl  the  company. 
If  the  message  offers  to  sell  one  horsi',  the  company, 
throntih  its  af-ent,  knows  that  if  when  it  is  deliverc'd 
it  reads  one  hundred  horses,  the  party  will  be  dam- 
aj?ed  to  the  extent  of  havinj;'  to  deliver  ninety-nine 
horses,  \vhi(^h  he  may  or  may  not  own,  but  wliich 
he  did  Jiot  intend  to  olTer  to  s(dl,  and  the  same  result 
would  follow  if  it  were  an  otter  to  buy  instead  of  to 
sell.-  Ro,  if  the  message  olTers  to  buy  or  s(dl  a  thinj.'; 
at  a  certain  ])rice,  it  is  presumed  to  know  that  if 
the  price  is  changed  iu  transmission,  the  party  will 
be  daniaj-ed  in  so  far  as  he  will  be  oblij-ed  to  sell  at 
a  chea])er  or  buy  at  a  higher  ])rlce  than  he  intended;' 
a.s  where  wheat  was  ordered  to  be  purchased  at  *'22," 
and  the  message,  as  delivered,  said  "25";'  where  the 
message  offered  to  sell  apples  at  !iiil.75  per  barrel,  and 
as  delivered,  it  stated  .fl.So  as  the  price  per  barrel.'"' 
So,  if  a  message  directs  an  agent  to  buy  certain  goods 
they  (the  company's  agents),  should  know  that  if  the 

1  Aycr  V.  Tel.  Co.,  79  Me.  4!):i;l  Am.  .St. 
Rep.  H53;  lOAtl.  Uep.  495;  Laws.  Contr. 
§§20,  2',  22. 

2  Miirr  r.  Tel.  Co.,  85Tenn.62»;  Wash- 
ington etc.  Tel.  Co.  v.  Ilobson,  15  Gratt. 
122.  So  wliere  a  disputch  onlerlni,  -'one 
shawl,"  when  delivered,  rend  "100 
Hhawls."  IJowen  t'.  Tel.  ("o.,  1  Am.  Law 
Kef?.  6S5.  Where  it  read, "two  hand  bon- 
nuets,"  bri.  aa  delivered  read  "200 bou- 
quets." Now  York  etc.  Tel.  Co.  t'.  Ury- 
burs,  3  Phila.  408;  35  I'a.  St.  2ti8;  7S  Am. 
Dec.  3.S8.  Where  it  read  an  order  for 
6,000  "sacks"  of  salt,  but  was  delivered 
as  calling  for  5,000  "casks."  Leonard  r. 
Tel.  Co.,  41  N.  V.  544;  1  Am.  Hep.  448. 
Where  100  shares  of  stock  were  ordered 
to  be  sold,  and  the  message  when  deliv- 


ered ordered  1,000  to  be  sold.  Tyler 
t'.  Tel.  Co.,  60  111.  421;  14  Am.  Ite)).  38. 
Where  10,0(10  bushels  of  corn  were  or- 
dered to  be  shippeil,  and  the  nussago 
when  delivered  said  "1,000"  bushels. 
Hartlett  i'.Tel.Co.,G2  Me.  20'.l;lGAni.l{ep. 
437.  Wlipre  as  .sent  it  read,  "Cover  200 
September  and  100  August,"  and  deliv- 
ered it  rea<l  "Cover  200  September  and 
200  August."  West.  U.  Tel.  Co.  v.  lUanch- 
ard,  fiS  (ia.  2',1H;  45  Am.  Uep.  480. 

3  West.  U.  Tel.  Co.  V.   Shotler,  71  Ga. 
7fi0. 

4  l)e  Uutte  V.  New  York  Tel.  Co.,  1 
Daly,  547;  30  Uow.  Vr.  40:i. 

«  West.  U.  Tel.  Co.  i\  l)u  Boise,  128 
111.  248;  21  N.  K.  Uep.  4. 

585 


TW 


!r 


W"     t" 


§349 


DAMAGES. 


[DIV.  III. 


c:> 

-.■T» 


t»'HM>t 


message  is  not  delivered  at  all  or  delayed,  the  plaint- 
iff's damage  will  be  the  difference  between  what  he 
would  have  had  to  pay  if  his  message  had  been  de- 
livered in  time,  and  what  he  had  to  pay  afterwards, 
if  the  goods  meanwhile  go  up  in  value.^  If  the  mes- 
sage offers  another  a  salaried  position,  or  accepts  an 
offer  of  such  a  kind,  they  must  know  that  a  failure  to 
deliver  correctly  will  lose  the  one  a  position  or  the 
other  the  services  of  a  person  he  desires.-  And  the 
same  would  be  true  of  a  message  engaging  the  services 
of  a  professional  man,"'  or  directing  the  action  of  au 
attorney  in  the  plaintiff's  case.^  If  the  message  is 
from  a  creditor  to  his  attorney  telling  him  to  attach 
the  property  of  his  debtor,  they  sliould  know  that  if 
they  do  not  deliver  the  message,  the  creditor  will  lose 
his  securitv  and  his  debt.'"'  Where  they  are  called  ui)on 
to  transmit  a  market  report,  they  should  know  that 
their  delivery  of  an  incorrect  copy  will  injure  the  re- 
ceiver, whether  he  be  seller  or  buyer,  who  relies  ui>ori 
the  report." 

In  all  these  cases  the  damages  are  but  the  direct 
and  natural  result  of  the  failure  to  deliver  properly, 
and  the  def'^ndaut  cannot  plead  that  he  had  uo  I'easou 


1  V.  S.  Tol.  Co.  V.  WcnRcr,  55  P.i.  St. 
262;  m  Am.  DfC.  751 ;  Uaclloy  v.  \\v>\..  V. 
Tel.  Co.,  115  Iiul.  lill;  15  N.  K.  Ui'|i.  845; 
.'rue  c.  Int.  Tol.  Co.,  GO  .Me.  ;•;  11  Am. 
Jlep.  15fi;  LiimlsbcrBer  r.  Tol.  Co.,  .•!2 
Hiii'l).  5.10 ;  ami  soo  S|ir;it;iie  i-.  West.  l^. 
Tol.  Ci).,i)  Daly,  200;  (J7  N.  Y.  WM\  Man- 
villo  c.  West.  C.  Tel.  C).,  .'iT  Iowa,  '214; 
18.\m.  Hop.  M;  l>e  Unite  c.  New  York 
etc.  Tel.  Co.,  1  l)aly,5n;;iollow.  I'r.  4l).<; 
Davis  c.  Tol.  Co.,  1  Cin.  Ui'p.  100;  Parks 
r.  Tel.  Co.,  13  Cal.  422;  ":!  \m.  Dee,.  6S!l; 
IJalilwin  I-.  r.  .s.  Tel.  Co.,  45  .\.  Y.  744;  G 
Am.  Kep.  lt;5;  West.  C.  Tel.  Co.  r. 
Ilrown,  58  Tex.  170;  44  .\m.  Kep.  610; 
WoHt.  v.  Tol.  Co.  r.  Grnhaui,  1  Col.  230; 
9  A'u.  Ucp.  l.')G. 

586 


•-•  West.  r.  Tel.  Co.  v.  Valentine,  18  III. 
.\pp.  57;  West.  U.  Tel.  Co.  i-.  .MrKibben, 
114  In<l.  511  ;  14  N.  K.  Kep.  S44  :  West.  U. 
Ti',  Co.  c.  Kenton,  52  Ind.  I  •  see  Meirill 
r.  West.  U.  Tol.  Co.,  78  Me.  97;  2  Atl. 
Uop.  S4. 

■•!  West.  r.  Tel.  Co.  v.  LonKWoll,  21  I'ac. 
Kep.  .■?;«)  (Ctah). 

4  .^praKiie  r.  West.  C.  Tel.  Co.,  G  Daly, 
200;  r,7N.  Y.S'.tO. 

•'>  I'arkMc.  AllaCal.Tel.Co.,  13  Cal.  422; 
03  Am.  Dec.  580;  West.  V.  Tel.  Co.  r. 
ShomeUi,71  Tex.  570;  10  Am.  St.  Uep. 
570;  10  S.  W.  Kep.  7.52. 

6  Turner  r.  llawkeye  Tel.  Co.,  41  la. 
468;  20  Aui.  Kep.  C06. 


illi 


DIV.  III. 


CH.  XXIII.] 


DAMAGES. 


349 


'  plaint- 
vliat  he 
jeen  de- 
'rwards, 
he  mes- 
epts  an 
uhu'o  to 
I  or  the 
Viul  the 
services 
)u  of  au 
s!sap;('  is 
1  attach 
■  tliat  if 
^vill  lose 
led  upon 
ow  that 
'  (lie  re- 
ies  upon 

e  direct 
ro])t'rly, 
)  reason 


3minc,  18  ni. 
'.  McKibbeD, 
144 ;  Wost.  U. 
•  see  Merrill 
e.  o: ;  2  Atl. 

■;woll,21  rue. 

.  Co.,  (>  Only, 

,.,  IHCal.  422; 
.  Tel.  Vo.  c. 
111).   St.   Uep. 

I.  Co.,  41  la. 


to  anticipate  such  a  result,  because  the  message,  on 
its  face,  has  suificiently  informed  hini.^ 

If  the  message  on  its  face  has  no  meaning  at  all,  or 
where  it  is  in  cipher,  and  has  therefore  only  a  hidden 
meaning,  and  the  company  has  no  further  knowledge, 
here  through  its  agent,  it  will  be  presumed  to  know  that 
its  non-delivery  will  at  least  damage  the  party  to  the 
extent  of  his  having  thrown  away  the  money  he  paid 
for  it,  and  therefore,  the  price  paid  for  its  transmis- 
sion is  recoverable  at  any  rate.-  Yet,  beyond  this, 
according  to  the  weight  of  authority,  no  special 
damages  are  recoverable,  because  in  such  a  case 
they  could  not  "reasonably  be«  supposed  to  have 
been  in  the  contemplation  of  both  parties  at 
the  time  they  made  the  contract  as  the  prob- 
able result  of  the  breach  of  it."^  Contrary  to  this 
reasoning,  there  are  a  respectable  number  of  cases  in 


1  And  see  Loonard  r.  N,  Y.  etc.  Tel. 
Co.,  41  N.  Y.  541;  1  Am.  Uep.  44(">;  Kitten- 
house  V.  Tel.  Co.,  44  NY.  203;  4  Am.  Uep. 
67;i;  Sprague  v.  West.  V.  Tel.  Co.,  6 
Daly,  200 ;  07  X.  Y.  5!)0 ;  RiUdwin  v.  Amer- 
ican Tel.  Co.,  1  Daly,  075;  De  Uutte  v. 
New  York,  A.  &  15.  Tel.  Co.,  1  l)aly,.')47; 
Mowry  v.  West.  U.  Tel.  Co.,  51  iliin, 
126;  U.  S.  Tel.  Co.  v.  Wenger,  55  I'u.  St. 
2G2;  03  Am.  Dec.  751;  Marr  v.  West.  U. 
Tel.  Co.,  85  Teiin.  529;  Pepper  v.  Tel. 
Co.,  87  Teun.  .554;  10  Am.  St.  Uep.  099; 
Washington  &  X.  O.  Tel.  Co.  v.  Hobson, 
15(iratt.  122;  Lane  v.  Mont.  Tel.  Co.,  7 
IT.  C.  C.  1'.  2:;;  I'arks  v.  Alta  Cal.  Tel. 
Co.,  13  Cal.  422;  73  Am.  Dec.  589;  West. 
V.  Tel.  Co.  V.  Graham,  1  Col.  230;  9  Am. 
Rep.  1.30;  West.  I'.  Tel.  Co.  v.  lilanch- 
ard,G8Cia.  299;  45  Am.  Uep.  4H0;  West. 
U.  Tel.  Co.  r.  Shottcr,  71  Ga.  700;  Tyler 
V.  West.  II.  '"'ol.  Co.,  GO  111.  421;  14  Am. 
Uep.  3S;  74  111.  1G8;  24  Am.  «ep.  279; 
West.  U.  Tel.  Co.  v.  Du  Hois,  111.  1889; 
W6st.  U.  ^  d.  Co.  V.  Valentine,  18  111. 
App.  57;  W  jot.  U.  Tel.  Co.  t'.  Harris,  19 
111.  App.  347;  West.  U.  Tel.  Co.  t'.  Fen- 
ton,  ,52  Ind.  1;  Hadley  v  West.  U.  Tel. 
Co.,  115  Ind.  191;  Manville  v.  West.  U. 
Tel.  Co.,  37  Iowa,  214;   18  Am.  Rep.  8; 


Turner  r.  Ilawkcye  Tel.  Co.,  41  Iowa, 
458;  20  Am.  Uep.  005. 

2  Cases  in  ne.\t  note. 

■1  Muckiiy  V.  Tel.  Co.,  16  Nev.  222; 
I$ehm  V.  Tel.  Co.,  8  IJiss.  131 ;  Candco  v. 
Tel.  Co.,  ,34  Wis.  471;  17  Am.  Uep.  452; 
Daniel  v.  Tel.  Co.,  Gl  Tex.  4.-)2 ;  48  Am. 
Uep.  305;  West.  U.  Tel.  Co.  v.  Martin,  9 
111.  App.  587;  United  States  Tel  Co.  v. 
Gilder.-,levc,29  JId.  2;i2;  90  Am.  Dec.  519; 
Cannon  v.  Tel.  Co.,  100  N.  C.  3C0;  G  Am. 
St.  Uep.  590;  G  S.  E.  Uep.  731 ;  l!eau:ire  v. 
Tel.  Co.,  21  Miin.  1.55;  I..anll^herger  v. 
Tel.  Co.,  32  Uarb.  630;  lialdwin  v.  Tel. 
Co.,  45  N.  Y.  744;GAm.  Uep.  l.!5;  San- 
der.'j  r.  Stuart,  I,.  U.  I.  (".  P.  D.  320;  Mc- 
Coll  f.  Tel.  Co.,  44  X  Y.  48";  West.  U. 
Tel.  Co.  V.  Wilson, 32  Fla.  ,527;  14  South. 
Uep.  1,  overrnlmg  West.  U.  Tel.  Co.  v. 
Hyer,  22  fla.  0.^7;  1  Am.  St.  Uop.  222;  1 
South.  Uep.  129;  Primrose  t'.  Tel.  Co., 
154  U.S.I;  14  S.  C.  Uep.  1098.  Where 
by  statute  the  company  is  liable  in  dam- 
ages for  failing  to  transmit  a  dispatch, 
a  company  failing  altogether  to  deliver 
a  cipher  di.-ipatch  is  liable:  Western 
Union  Tel.  Co.  r.  Ueynolds,  77  Va.  173; 
40  Am.  Uep.  715. 

587 


■       I  M.A.\f.  PW   I  I  j 


m 


(II 


§349 


DAMAGES. 


[dIV.  III. 


c: 

""'3 


:U-3 


which  it  is  held  that  the  company  is  liable  for  trans- 
mitting incorrectly  a  cipher  dispatch,  whose  meaniujr 
was  unknown  to  the  operator,  to  the  same  extent  as 
though  the  message  was  written  in  the  ordinary  way 
and  its  meaning  known  to  him.'  The  telegraph  com- 
pany, it  is  argued  in  support  of  this  doctrine,  has  not 
a  scale  of  charges  higher  or  lower  as  the  importance 
of  the  dispatch  is  great  or  small,  as  the  common  car- 
rier has  in  the  transportation  of  goods.  It  cannot  be 
said,  then,  that  for  this  reason  the  operator  should  be 
informed  of  its  importance,  wIkmi  it  makes  no  difl'cr- 
ence  in  the  charge  of  transmission.  It  is  not  shown 
that,  if  its  importance  is  disclosed  to  the  operator,  he 
is  required,  by  the  rules  of  the  company,  to  send  the 
message  out  of  the  order  in  which  it  comes  to  the  oflice, 
with  reference  to  other  nu'ssages  awaiting  transmis- 
sion; that  he  is  to  use  any  extra  degree  of  skill,  any 
different  method  or  agency  for  sending  it,  from  the 
time,  the  skill  used,  the  agen<-ies  emi)loyed,  or  the  com- 
pensation demanded  for  sending  an  unimportant  dis- 
patch, or  that  it  would  aid  the  operator  in  its  trans- 
mission. For  what  reason  then,  could  he  demand  in- 
formation that  was  in  no  way  whatever  to  affect  his 
manner  of  action,  or  impose  on  him  any  additional  ob- 
ligation? It  could  only  operate  on  him  persuasively 
to  perform  a  duty  for  which  he  had  been  paid  the  price 
he  demanded,  which,  in  consideration  thereof,  he  had 
agreed  to  perform,  and  which  the  law,  in  consideration 
of  his  promise,  and  the  reception  of  the  consideration 
therefor,  had  already  enjoined  on  him.'^ 


1  Dangherty  f.  Tel.  eo.,75  Ala.  1C)8;  51        West.  U.   Tel.  Cn.  r.  Keynolds,  77  Va. 


Am.  licp.  4;«;  West.  U.  Tel.  Co.  v. 
Way,  83  Ala.  542;  4  Sonth.  Hep.  844; 
West.  U.  Tel.  Ca.v  Blanchanl,  fiS  Ca. 
299;  4,'i  Am  Uep.  480;  We.st.  V.  Tel.  Co. 
V.  Fatmau,  7,3  Ga.  285;  64  Am.  Uep.  877; 

588 


I'A;  iT>  Am.  Hep.  71S;  Iliirtr.  Tel.  f'o.,r,fl 
Cttl.  579;  55  Am.  Rep.  119;   6  I'ac.   Uep. 

n  West.  U.  Tel.  Co.  r.  Ilyer.  M  Fla.  637; 
1  Am.  St.  Uep.  V2'2;  1  South.  Uep.  129. 


III^N'. 


wmmm 


CU.  XXIII.] 


DAMAGES. 


349 


The  sender  of  a  message  has  a  right  to  use  abbrevi- 
ations in  common  use,  und  the  languuge  of  merchants 
and  business  men,  in  telegraphing  their  orders,  replies 
and  contracts;  and  telegraph  operators  Avill  be  pre- 
sumed to  understand  these  things  which  they  ought 
to  know  to  properly  conduct  the  bmsiness.^  Thus,  in 
one  case  wdiere  the  message  read:  "Buy  50  Northwest- 
ern— 50  Prairie  du  Chien,  limit  45"  ;2  iu  another  where 
it  read:  "Car  cribs  six  sixty,  c.  a.  f.,  prompt ;"3  in  an- 
other where  it  read:  "Cover  200  September,  100  Au- 
gust";^ in  another  where  it  read:  "10  cars  new  two 
whites  Aug.  shipment,  fifty-six  half";-^  in  another 
where  it  read:  "Sell  100  Western  Union  answer  price";" 
it  was  held  that  the  agents  of  the  company  had  suffi- 
cient knowledge  from  the  face  of  the  message  to  ap- 
prise them  of  its  importance.  This  question  is  fully 
discussed  in  an  Illinois  case,''  where  the  message  read: 
"Buy  in  addition  to  1,000  August,  1,000  cheapest 
month.  Put  stop  order  on  5,000  Dec.  at  17  cents,"  and 
there  w'as  evidence  that  the  company,  fr'^m  previous 
transactions,  ought  to  have  understood  the  meaning 
of  the  message.  "All  the  cases,"  said  the  Court, 
"which  liold  that  a  telegraph  company  is  not  liable 
for  consequential  damages  for  a  failure  to  transmit  a 
dispatch  as  received,  on  the  ground  of  indefiniteness 
or  obscurity,  in  the  language  of  the  message,  do  so 
upon  the  ground  that  unless  the  agent  of  the  company 
may  reasonably  know  from  the  message  itself,  or  is 


i  2Thomp.  Neg.,§856;  Hadley  v.  Weut. 
U.  Tel.  Co.,  115  Ind.  I'.il ;  15  N.  K.  llep. 
S45;  Manville  v.  Weat.  U.  Tel.  Co.,  37 
Iowa  214;  18  Am.  Uep.  8;  True  v.  In- 
teruat.  Tel.  Co.,  60  Me.  9;  11  Am.  Uep. 
166;  Kittouhouse  v.  Tel.  Co.,  44  N.  Y.  2ti3; 
4  Am.  I{ep.  673;  Mowry  v.  Tel.  Co.,  51 
Hnn.  126. 

2  United  States  Tel.  Co.  f.  Wenger,  65 
Pa.  St.  262 ;  93  Am.  Dec.  751. 


3  Pepperr.  West.  U.  Tel.  Co.,>i7Tenn. 
654;  10  Am.  St.  Uep.  6!l9;  1  S.W.  Kep.  783. 

4  West.  U.  Tel.  Co.  v.  Blanchard,68 
Ga.  209;  45  Am.  Kep,  480. 

s  West.  U.  Tel.  Co.  v.  Harris,  19  111. 
App.  347,353. 

«  Tykr  v.  West.  U.  Tel.  Co.,  60  111.  421; 
14  Am.  Uep.  38. 

r  Postal  Tel.  Co.  v.  Lathrop,  131  111, 
675;  23  N.  K.  Uep.  583. 

589 


I 


§349 


DAMAGES. 


[DIV.  III. 


by 


I  i 


CO 

c: 

CO 


3»: 


informed  by  other  means,  that  it  relates  to  a  matter 
of  business  importance,  he  cannot  be  supposed  to  have 
contemplated  damages  as  a  result  from  his  failure  to 
send  it  as  written,  as  in  the  case  of  cipher  dispatches. 
The  Supreme  Court  of  Wisconsin,  in  Candcc  v.  Tdct/roph 
Co.,^  sa}':  'The  operator  who  receives  and  who  re])i'i'- 
sents  the  company,  and  may  for  this  purpose  be  said 
to  be  the  other  pirty  to  the  contract,  cannot  be  sup- 
posed to  look  upon  such  a  message  as  one  pertaining 
to  transactions  of  pecuniary  value  and  importance, 
and  in  respect  to  which  pecuniary  lc?c  or  damages  will 
naturally  arise  in  case  of  his  failure  or  omission  to 
send  it.  It  may  be  a  mere  item  of  news,  or  some  other 
communication  of  trifling  and  unimportant  character.' 
It  is  clear  enougli  that,  applying  the  rule  in  IfadJiij 
V.  Baxendalr,  a  nrovery  cannot  be  had  for  a  failure  to 
correctly  transmit  a  mere  cii)li('i'  dispatch,  unexplained, 
for  the  reason  that  to  one  uiUKMpiaintcd  with  the  mean- 
ing of  the  ciphers,  it  is  wholly  uuintelligible  and  non- 
sensical. An  operator  would,  therefore,  be  justiliable 
in  saying  it  contains  no  information  of  value  as  per- 
taining to  a  business  transaction,  and  a  failure  to  send 
it,  or  a  mistake  in  its  transmission,  can  reasonably  re- 
sult in  no  pecuniary  loss.  The  messages  in  this  case, 
however,  are  not  cipher  dispatches.  Their  language  is 
plain  and  intelligible  to  every  one  who  can  read,  so 
far  as  they  purport  to  disclose  the  business  to  which 
they  relate.  They  are  abbreviations,  and  clearly  indi- 
cate that  they  relate  to  business  transactions  between 
the  sender  and  the  sendee.  The  first  message,  'Please 
buy  in  addition  to  one  thousand  August,  one  thous- 
and cheai)est  month,'  was  notice  to  the  agent  at 
Chicago  that  a])i>ellees  were  ordering  the  agent  in 
New   York  to  purchase  merchandise   for  them.     We 


1  34  Wis.  472. 
5'JO 


m 


CII.  XXIII.] 


DAMAGES. 


^349 


We 


do  not  agree  with  counsel  in  saying  that  it  might 
as  well  be  construed  to  be  an  order  'for  a  thousand 
of  toothpicks  or  a  thousand  papers  of  pius  as  any- 
thing else.'  Every  one  of  intelligence  knows  that 
such  articles  are  not  purchased  in  that  way.  Sup- 
pose, however,  that  the  agent  was  not  informed  as  to 
the  quantity,  quality,  and  value  of  the  merchandise  to 
be  purchased  by  the  message,  would  that  justify  him 
in  contemplating,  within  the  rule  in  Iladlvij  v.  Ba-vcn- 
dale,  no  damages  as  a  result  of  his  negligence  or  omis- 
sion of  duty  in  promptly  and  correctly  sending  it  for- 
ward? It  certainly  cannot  be  contended  that  the 
agent  must  be  intormed  of  all  the  facts  and  circum- 
stances pertaining  to  a  transaction  referred  to  in  a 
telegram,  which  are  known  by  the  parties  themselves, 
to  make  his  company  liable  for  more  than  nominal 
damages.  If  it  should  be  so  held,  the  telegraph  would 
cease  to  be  of  practical  utility  in  the  commercial  world. 
It  is  not  easy  to  state  a  case  in  which  it  can  be  said 
the  parties  contemplated,  at  the  time  of  contracting, 
all  the  damages  which  will  pr  bably  result  from  a  fail- 
ure to  perform  the  contract.  We  think  the  reasonable 
rule,  and  one  well  sustained  by  authority,  is  that  where 
a  message  as  written,  read  in  the  light  of  well-known 
usage  in  commercial  correspondence,  reasonably  in- 
forms the  operator  that  the  message  is  one  of  business 
importance,  and  discloses  the  transaction  so  far  as  is 
necessary  to  accomplish  the  pui^jose  for  which  it  is 
sent,  the  company  should  be  held  liable  for  all  the  di- 
rect damages  resulting  from  a  negligent  failure  to 
transmit  it  as  written,  within  a  reasonable  time,  unless 
such  uerrligence  is  in  some  way  excused.  Under  this 
rule,  b'jth  dispatches  as  presented  to  appellant's  op- 
erator were  sufficiently  explicit  to  charge  it  with  the 

591 


ir 


§349 


DAMAGES. 


[DIV.  III. 


'    1 


CO 

<- 


loss  susitained  by  appellees,  resulting  from  what  has 
been  found  by  the  jury  to  be  its  inexcusable  mistakes." 
It  is  not  necessary  that  the  agents  of  the  company 
should  see  on  the  face  of  the  dispatch  the  exact 
amount  of  pecuniary  loss  Avhicli  will  result  from  its 
non-delivery.'  In  a  Texas  case,-  where  the  message, 
as  given  to  the  operator  read:  **You  had  better  come 
and  .atte?  "our  claim  at  once,"  the  Court  said:  "The 

messugi'  ii  ,ed,  with  reasonable  certainty  to  the 
telegraph  operator  the  facts, — 1.  The  plaintiff  had  a 
claim  cr!  home  pecuniary  nature;  2.  That  the  claim 
should  be  at:,  ide^  lu  al:  Jefferson;  3.  That  the  mat- 
ter was  urgent,  *at  once';  and  4.  Loss  would  probably 
follow  want  of  such  attention,  which  might  be  pre- 
vented by  obeying  the  call  made  in  the  dispatch.  This 
was  sufficient  to  disclose  that  the  object  was  to  enable 
plaint itfs  to  attend  to  a  claim  due  them,  and  that  loss 
might  result  from  a  failure  to  transmit  the  message 
with  ])romi)tness."  In  another  case,''  E,  who  had  ])ur- 
chased  a  Hock  of  sheep,  Avhich  he  wished  to  4lrive  to 
his  ranch,  directed  a  telegram  to  a  servant  to  meet 
him  at  a  certain  place  and  "bring  Shep"  (meaning  a 
sheep-dog  on  the  ranch).  The  message  was  delivered 
so  as  to  read  "bring  sheep.''  The  servant  accordingly 
drove  E's  sheep  from  the  ranch  to  meet  him.  E,  when 
he  sent  the  dispatch,  informed  the  agent  in  charge  of 
the  office  that  he  wanted  the  dog  to  assist  in  driving 
the  sheep  on  his  ranch.  "Where,"  said  the  Court,  "no- 
tice of  the  main  fact  was  given,  we  think  the  defend- 
ant was  chargeable  with  notice  of  every  incidental 
fact  that  would  attend  the  transaction  that  it  could 
then   have  ascertained  by  the  most  minute  inquiry. 


1  Pepper  v.  West.  U.  Tel.  Co.,  87  Tenn. 
B54;  10  Am.  St.  Uep.  690;  11  8.  W.  Rep. 
78.S;  Manville  r.  West.  U.  Tel.  Co.,  37  la. 
214;  18  Am.  Kep.  8. 

592 


2  West.  V.  Tel.  Co.  r.  Sheffield,  71  Tex. 
670;  10  Am.. St.  Rep.  71)0;  10  S.  W.  Uep.  7fl2. 

3  West.  U.  Tel.  Co.  v.  Edsall,  12  .S.  W. 
Rep.  41  (Tex.). 


OH.  XXIII.J 


DAMAGES. 


§349 


Notice  of  the  main  purpose  was  sufiiciont  to  put  it 
upon  inquiry  as  to  tlie  attonaant  dotails,  and  it  is 
chargeable  with  all  it  could  have  learned  by  sueli  in- 
quiries.      This  rule  enforced  in  all  cases,  is  emphati- 
cally applicable  to  telegraph  eompanies.       The  con- 
densed method.s  of  expression  in  use  in  their  business 
requires  them  to  take  notice  of  whatever  the  dispatch 
suggests,  and  if  they  need  fuller  information  on  the 
subject  they  should  seek  it,  and  if  they  do  not  do  so, 
they  must  be  held,  as  we  have  suggested,  to  have  all 
the  knowledge  that  such  inquiries  could  have  elicited. 
In  this  ca.se,  knowledge  of  the  fact  that  the  two  herds 
were  to  be  di'iven  between  known  i)oints,  at  a  stated 
season  of  the  year,  would  properly  charge  the  company 
sufficiently  with  notice  of  the  distances,  character  of 
the  country,  expense-  of  driving,  and  effect  of  delay 
on  the  sheep,  considering  the  weather  and  other  things 
incident  to  driving  flocks  of  sheej)  over  the  routes,  to 
make  it  resi)onsible  for  damages  growing  out  of  such 
causes  or  conditions." 

But  where  there  is  nothing  on  the  face  of  the  message 
or  in  the  information  given  by  the  sender  to  the  op- 
erator, from  which  it  can  be  inferred  that  any  special 
loss  will  result  from  its  non-delivery,  the  company  is 
not  liable  for  such  special  damages.^  Nor,  as  in  other 
cases,  is  the  company  liable  for  any  remote  damages, 
L  €.,  damages  not  the  natural  and  proximate  result  of 
its  neglect.-     Thus,  where  A  teh'grai)hed  to  B  to  send 


1  Baldwin  r.U.  S.  Tel.  Co.,  45  K.  Y.  774; 
6  Am.  Kep.  165 ;  I.imdsberger  v.  Magnetic 
Tel.  Co.,  32  J$aib.  5.S0. 

2  West.  U.  Tel.  Co.  v.  Hall,  124  U.  S. 
444;  West.  U.  Tel.  Co.  r.  Graham,  1  Col. 
230;  9  Am.  Hep.  136;  llatlley  c.  West.  U. 
Tel.  Co.,  115  Inil.  101 ;  First  Xat.  Bank  of 
Barnesville  r.  Tel.  Co.,  30  Ohio  .St.  555; 
27  Am.  Uep.  4a5;  Reliance  Lumber  Co.  v. 
West.  U.  Tel.  Co.,  58  Te.x.  394;  44  Am. 
Rep,  620;  Hubbard  v.  West.  U.  Tel.  Co., 

3U 


33  Wis.  558;  14  Am.  Uep.  776;  West.  U. 
Tel.  Co.  V.  Crall,  oi)  Kan.  5>0;  Sinitti  v. 
West.  U.Tel.  Co.,  83  Ky.  1(14;  4  Am.  St. 
Kep.  12r,;  .Squire  v.  West.  U.  Tol.  Co.,'J8 
Mass.  2:;2 ;  93  Am.  Dec.  15" ;  Laudsberger 
I'.  Magnetic  Tel.  Co.,  32  Barb.  5.W;  Mc- 
CoU  V.  West.  U.  Tel.  Co.,  44  N.  Y.  Sup. 
Ct.,4S7;  7  Abb.  N.  C.  151;  I'.aldwin  v.  U. 
S.  Tel.  Co.,  45  N.  Y.  744 ;  6  Am.  Uep.  165; 
Ix)wery  v.  West.  U.  Tel.  Co.,  GO  N.  Y. 
198;  19  Am.  Uep.  154;  Tefrram  r.  West. 

593 


§349 


DAMAGES. 


[dIV.  III. 


I 


\    I 


c: 


him  $500,  and  the  message,  as  delivered,  aslied  for 
$5,000,  which  B  sent  and  A  absconded  with,  it  was 
held  that  the  company  was  not  responsible  to  R,'  the 
Court  saying:  "The  embezzlement  could  not  reasonably 
have  been  expected,  and  did  not  naturally  How  from 
the  Avrong  of  the  defendant.  The  cause  of  the  loss 
was  the  criminal  act  of  A,  conceived  and  executed  after 
the  defendant  had  ceased  to  have  any  relation  to  the 
money."  So,  where  the  telegraph  company  inaccu- 
rately transmitted  a  message  ordering  a  race-horse^  of 
C,  to  be  sent  to  a  certain  ]>lace,  and,  owing  to  the  mis- 
take in  the  telegram,  the  horse  was  sent  to  another 
place,  and  could  not  be  entered  for  the  races,  it  was 
held  that  O  could  not  recover  for  the  loss  of  the  prize 
purses  which  the  horse  might  have  won  had  he  been 
present  at  tlu'  i-aces.-  Nor,  as  the  last  case  shows, 
are  mere  speculative  or  contingent  profits,  which  might 
have  accrued  to  the  plaintiff  had  the  message  been 
properly  delivered,  recoverabl  .•' 

Unless  the  plaintiff  proves  special  injury  or  actual 
damage,  he  can  recover  nominal  damages  only,^  except 
where  a  penalty  is  imposed  by  statute  for  the  failure  to 
transmit  or  deliver  a  message  intrusted  to  it,  in  which 
case   the  amount   of  the  penalty   may  be  recovered. 


U.  Tel.  Co.,  100  N.  C.  28;  f>  Am.  St.  Rep. 
57;  6  S.  K.  Kcp.  770:  First  .Nut.  Hank  r. 
Tel.  Co.,  .SOOIiio  St.  br>5;  27  Am.  K.:p.  48.5; 
Bodkin  v.  West.  U.  Tel.  (;o.,  31  Fed. 
Rep.  l;^4. 

1  Lowery  v.  Tel.  Co.,  Go  N.  Y.  198;  1!) 
Am.  Hep.  154. 

2  West.  U.  Tel.  Co.  r.  Crall,  39  Kan. 
580;  18  1'ac.  Rep  719. 

»  Clay  V.  West.  U.  Tel.  Co., 6  S,  E.  Rep. 
813  (Ca.);  Reanpre  t'.  I'acillc  etc.  Tel. 
Co. ,21  Minn.  l.'iS;  Hreeser.  U.  S.  Tel.  Co., 
45  I5ai  b.  27,-) ;  48  N.  Y.  1.H2  ;  8  Am.  Rep.  520 ; 
Hubbard  v.  West.  IT.  Tel.  (^o  ,  3:i  Wis. 
CSS;  14  Am.  Rep.  775;  Tel.  Co.  v. Graham, 

594 


1  Col.  230;  9  Am.  Rep.  13R;  Sqnire  r.  West. 
U.  Ti'l.  Co.,  98  MasM.  232;  93  Am.  Dec. 
l.">7;  True.  !•.  Interiiat.  Tel.  Co.,  CO  He. 
9;  11  Am.  Uef).  150;  .McColl  v.  West.  U. 
Tel.  Co.,  7  Abb.  N.  C.  151 ;  KiUKliorne  v. 
Mont.  Tel.  Co.,  18  C.  C.  Q.  1!.  00;  Lane  f. 
Mont.  Tel.  Co.,  7  U.  C.  C.  1".  75. 

4  Little  Rock  etc.  Tel.  Co.  r.  Davis,  41 
Ark.  79;  Clayr.  West.  U.  Tel.  Co..  Ca. 
18S8;  Cutts  V.  Western  Union  Tel.  Co., 
71  WiH.  40;  West.  U.  Tel.  Co.  v.  Hall,  124 
U.  S.  444;  8S.  C.  Rep.  577;  l'ennin(,'ton 
V.  West.  V.  Tel.  Co.,  07  l;i.  031 ;  50  Am. 
Rep.  367;  24  N.  W.  Rep.  45;  25  Id.  838. 


Ill 


[dIV.  III. 

sked  for 
I,  it  wa.s 
)  n,'  the 
isonably 
ow  from 
the  loss 
tod  aftor 
11  to  tlio 
'  inacc'U- 
-lioi'sc^  of 
tlio  niis- 
another 
•5,  it  was 
tlio  prize 
he  be<?u 
0  shows, 
cli  mi  gilt 
ige  l)('<Mi 

)r  actual 
',^  except 
failure  to 
in  which 
Bcovered, 


qiiirc  jj.  West. 

as  Am.  Dec. 
1.  Co.,  60  Mc. 
II  r.   West.  U. 

KiiiKliorne  r. 
It.  I'M;  Liinor. 
'.75. 

1. 1'.  Davis,  41 
Tul.  Co.,  Ga. 
lion  Tel.  Co., 
'o.  V.  Hall,  124 

;  I'ennington 
I.  g:?1  ;  56  Am. 
;  25  Id.  838. 


CH.  XXIII.] 


DAMAGES. 


§  350 


without  alleging  or  proving  any  actual  damage.^  Ex- 
exemplary  damages  are  recoverable  where  there  is  such 
willful  or  gross  negligence  on  the  part  of  the  agents 
of  the  company,  a«  to  indicate  wantonness  or  a  ma- 
licious purpose  in  failing  to  transmit  and  deliver  the 


message.- 


§  350.  Damages  for  Mental  Suflfering.— Recover- 
able in  Texas  and  Other  States. — In  an  early  edi- 
tion of  Shearman  and  Kedlield  on  Negligence,  it  is 
said:-'  "In  case  of  delay  or  total  failure  of  delivery  of 
messages,  related  to  matters  not  connected  with  busi- 
ness, such  as  personal  or  domestic  matters,  we  do  not 
think  the  company  in  fault  ought  to  escape  with  mere 
nominal  damages,  on  account  of  the  want  of  strict  com- 
mercial value  in  such  messages.  Delay  in  the  an- 
nouncement of  a  death,  an  arrival,  the  straying  or  re- 
covery of  a  child,  and  the  like,  may  often  be  produc- 
tive of  injury  to  the  feelings,  which  cannot  be  easily 
estimated  in  money,  but  for  which  a  jury  should  be 
at  liberty  to  award  fair  damages."  No  authority  was 
cited  by  the  learned  authors,  as  no  case  had  then  been 
reported,  in  which  the  question  had  been  presented  to 
a  court  of  last  resort. 

A  case  arose,  however,  in  Texas  in  1881,  /S'o.  Relle  v. 
Wcsfcnt.  Union  TeJcfjraph  Com  pa  in/.*  It  was  alleged  here 
that  the  telegraph  company  neglected  to  deliver  a  mes- 
sage sent  to  the  plaintiff,  in  these  words:  "Your  mother 
is  dead;  come  on  night  train,"  whereby  he  was  pre- 
vented from  attending  her  funeral,  and  damages  were 
claimed  for  th-e  injury  caused  to  his  feelings  thereby. 


1  Little  Uock  etc.  Tel.  Co.  v.  Davis,  41 
Ark.  7!*;  West.  U.  Tel.  Co.  v.  Bnchanan, 
S5  Ind.  429 ;  9  Am.  Iltp.  744. 

a  West  f.  Western  Uuiou  Tel.  Co.,  39 
Kan.  93;  7  Am.  .St.  Itep.  530;  17  Pac.  Rep. 
807;  Gnlf  etc.  U.  Co.  v.  Levy, 59 Tex.  HI; 
46  Am.  Rep.  269. 


3  §  605  (1880). 

4  55  Tex.  308;  40  Am.  Rep.  805;  Logan 
V.  West.  U.  Tel.  Co.,  84  III.  468,  was  ear- 
lier bat  the  precise  question  did  not 
arise  there. 


595 


§350 


DAMAGES. 


[DIV.  III. 


f'l 


CO 

c::: 

l4t-HW>t 


r- 


The  Siipromp  Court  held  that  this  was  a  proper  ele- 
nient  of  (Ininafics,  the  Court  saying  that  the  uatural 
consequence  of  tlie  failure  to  deliver  such  a  niessao-e 
was  to  produce  a  keen  sense  of  grief  incident  to  a 
disappointment;  that  tlu>  company  must  have  contem- 
plated such  a  result,  as  its  im])ortance  and  the  relation- 
ship appeare^l  on  the  face  of  the  message;  that  such 
danuiges  were  <,\eneral  damages  recoverable  under  a 
general  averment  of  damage,  but  that  juries  should  be 
cautiontHl  in  such  cases,  to  distinguish  between  the  re- 
gret and  disappointment  cause*!  by  the  neglect  of  the 
company,  and  the  grief  causcNl  the  ]daintifl'  by  the 
death  of  his  parent  or  other  relative.  Two  years  later 
this  case  was  api)arenlly  overruled,'  but  the  doctrine 
announced  was  reiterated  in  18<S(},-  and  is  now  well- 
settled  in  that  State.-' 

The  Texas  doctrine  is  folloAved  in  Alabama,  Avhere 


1  (Jnlf  etc.  U.  Co.  f,  Kevy,  .W  Tex.  ofiif; 
46  \m.  Rep.  27S. 

2  Sluarl  i:  IVl.  Co.,  fi6  Tox.5S0;  59  Am. 

IK'p.  O'.'.i;  iss.  \v.  Hop.  :r.i. 

•'I  Ldpcr  r.  \V(>st.  \'.  Til.  Co.,  70  Tex. 
68!i;  s.>;.  \V.  Hep.  GOO;  W.  U.  Tel.  Co.  v. 
Cooper,  71  Tex.  507;  9  S.  \V.  Hop.  .'i98; 
W.  U.  Tel.  Co.  r.  ISmesche,  72  Tex.  051; 
10. S.  W.  Rep.  734;  W.  V.  Tel.  Co.  v. 
Simpson,  'S  Tex.  iVl;  11  •■.  W.  Hep.  ;«.'); 
\V.  U.  Tel.  Co.  f.  .\(I.uns,  7.^  Tex.  rilil  ;  12 
S.  W.  Kep.  837;  \V.  V.  Tel.  Co.  r.  I'ee- 
gles,  12. S.  W.  Kep.  8;o;  W.  C.  Tel.  Co.  f. 
.loiies,  HI  Tex.  271;  l(i  S.  W.  7lep.  lOiif,; 
AV.  C.Tel.  i;o.  V.  Itosontri'ter,  SO  Tex. 
400;  ir.  .■^.  W.  Kep.  25;p;rieTel.  rtc.  Co.  c 
Crimes,  82  Tex.  8',);  17  S.  \V.  Kep.  H.'?!  ; 
>\  .  C.  Tel.  Co.  f.   XutioiiH.  82  Tex.  .5:,y; 

18  S.  \V.  Hep.  70'.i;  W.  U.  Tel.  Co.  r. 
Lydon,  82  Tex.  364;  18  S.  W.  Kep.  701; 
W.  V.  Tel.  Co.  V.  Heringer,  84  Tex.  38 ;  19 
S.  W.   Hep  3,SG;  W.U.Tel.  Co.  r.  Krwin, 

19  S.  W.  Ucp.  1002;  W.  U<  Tel.  Co.  v. 
Carter,  20  S.  W.  Hep.  834;  W.  U.  Tel. 
Co.  r.  Wisdom,  20  S.  W.  Hep.  66 ;  W.  U. 
Tel.  Co.  f.  Berdinc,  21  S.  W.  Kep.  982; 
W.  U.  Tel.  Co.  f.  Stephens,  21  S.  W.  Hep. 
148;  W.  U.  Tel.Co.r.  Kvans,  1  Tex.  Civ. 

596 


.\pp.  298;  21  S.  W.  Keji.  266;  \V.  V.  Tel. 
Co.  I'.  riner,21  S.  VV.  Hep.  ;!1.", ;  W.  U. 
Tel.  Co.  f.  .■Mcl.eod,  22  .><.  W.  Kep.  91)8; 
W.  U.  Tel.  Co.  V.  I.inn,  2.i  .^.  \V  l!v|..  H9.5; 
W.  r.  Tel.  Co.  i:  Zune,  25  .s.  \V.  Ki'p.  722; 
W.  U.  Tel.  Co.  V.  Ciurk,  2,5  S.  W.  Hep. 
SWo;  W.  C.  Tel.  Co.  v.  Jobe,  2.5.4.  W.  Hep. 
103G;  W.  U.  Tel.  Co.  v.  WiMg;ite,2.5  S.  W. 
Hep.  4:i:i;  W.  U.  Tel.  Co.  v.  I.inn,  26  S.  W. 
Hep.  4;io;  \V.  IT,  Tel.  Co.  r,  I'orter,  26  S. 
W.  Kep.  866  ;W.  V.  Tel.  Co.  f.  Keiidzora, 
26  S.  W.  Kep.  215;  W.  U.  Tel.  Co.  v.  Hill, 

26  .S.  W.  Hep.  252;  W.  C.  Tel.  Co.  v.  .Aliiy, 

27  S.  W.  Kep.  760;  W.  U.  Tel.  Co.  r.  De- 
jnrles,  27  s.  W.  Hep.  792,  These  cases 
are  cited  by  W.  (!.  Kodfrer.",  I'^ij.,  in  an 
able  article  on  this  topic  in  29  Am. 
J.aw  Kov.  209.  Mr.  Ho<it;er8  nrKUi's  with 
great  ability  and  clearness  on  the  wide 
of  the  Texas  iloctrtne,  and  his  reasons 
seem  conclusive  ot  the  (jucstion.  .See, 
also,  West.  U.  Tel.  Co  v.  I'iner,  29  S.  W. 
Ucp.  66;  WcBt.  U.  Tel.  Co.  v.  O'Keefc, 
29  S.  W.  Hep.  1137;  West.  U.  Tel.  Co.  f. 
Kinsley,  23  S.  W.  Rep.  831;  West.  U. 
Tel.  Co,  «.  Womack,  29  S.  W.  liep.  932; 
West.  U.  Tel.  Co.  r.  Russell,  31  .S.  W. 
Kep.  698. 


[dIV.  III. 

>pei'  ele- 

natural 

lU'ssage, 

?nt  to  a 

coiitom- 

I'clation- 

lat  such 

under  a 

hould  be 

'Ji  the  rt'" 

ft  of  tho 

f  by  tbo 

ars  ]at(M- 

(btctriiic 

ow  Avell- 

a,  w'boro 

fi;  W.  r.  Tcl. 

;'.ir,;  w.  V. 

W.   Itcp.  '.1118; 

W,  l.'f  p.  H!ir>; 

W.  Mi-v.rii; 

S.  W.  Kep. 
IT.S.  W.  Hop. 
(;,ite,25S.  W. 
I,iiin,2GS.  W. 
I'ortcr,  26  S. 

V,  Koiiilzora, 
1.  Co.  f.  llill, 
l.Ci).  !■.  May, 
lil.  Oil.  r.  l)e- 

rhcso  cases 

,  K-([.,  in  an 

c   111    'i'.<  Ami. 

8  nixiu's  with 

i  on  llic  Hide 

his  reasons 
iii'stion.  Sec, 
iner,2!»S.  W. 
.  V.  O'Keefe, 
.  Tel.  Co.  t'. 
:il;  West.  U. 
W.  Uep.  9.12; 
ell,  31  .S.  W. 


CH.  XXIII.] 


DAMAGES. 


§350 


the  message  read:  "IIow  is  ma.  Answer  at  once";^  in 
Indiana,  where  the  message  read:  "My  wife  is  very  ill; 
not  expected  to  live";-  in  Kentucky,  where  the  mes- 
sage was  to  a  sou,  and  annouueed  the  illness,  death, 
and  time  of  funeral  of  1ml  father;''  in  North  Carolina, 
where  the  message  was  to  the  husband,  "Come  in  haste; 
your  wife  is  at  the  point  of  death";'  in  Tennessee, 
where  the  message  read:  "Your  brother  is  in  a  dying 
condition";'"'  in  a  case  in  the  Federal  Court,  where 
the  message  read:  "Dell  is  worse.  Oome  at  once.  Sis- 
ter Annie";"  and  ii.  lowa,^  where  the  message  read: 
"Mother  dead,  funeral  Wednesday."** 

In  some  of  these  cases,  the  action  was  by  the  sender 
who  had  paid  for  the  message;  in  others  by  the  sendee. 


1  West.  U.  Tel.  Co.  v.  Cunningham,  14 
South.  II  p.  579;  and  see  West.  V.  Tel. 
Oo.  r.  Uenderson,  7  South.  Itep.  419. 

2  Heese  V.  West.  U.  Tel.  Co.,  1'.'!  Ind. 
894;  24  X.  E  Kep.  1G3;  We.<t.  V.  Tel.  Co. 
I'.  Slralemeier,  .SO  N.  E.  Uep.  527. 

a  Chapman  t'.  West.  U.  T«l.  Co.,  13  S. 
W,  Uep.  880. 

4  Young  V.  West.  U.  Tel.  Co.,  107  N.  C. 
370;  U  S.  E.  Uep.  1044;  and  see  Thomp- 
son t'.  West.  U.  Tel.  Co.,  liiH  N.  C.  549; 
11  S.  E.  Uep.  269;  Thompson  i'.  WeHt.  U. 
Tel.  Co.,  107  N.  C.  449;  12  S.  E.  Uep.  427  ; 
Shonill  V.  West.  U.  Tel.  Co.,  21  S.  E. 
Rep.  429. 

6  Wadsworth  f.  West.  U.  Tcl.  Co.,  86 
Tenn.  C95;  0  Am.  St.  Uep.  864;  8  S.  W. 
Uep.  574. 

6  Ueasley  v.  West.  U.  Tel.  Co.,  39  Fed. 
182. 

7  See  Curtis  v.  U.  Co.,  54  N.  W.  Uep. 
339,  an  action  against  a  carrier  of  pas- 
sengers. 

«  Mentzer  v.  West.  U.  Tel.  Co.,  62  N. 
W.  Uep.  1  (la.),  a  very  exhaustive  dis- 
cussion of  the  question  in  the  course  of 
whicli  the  court  say:  "Of  the  text 
writers:  Shearra.  &  U.  Neg.  p.  692,  §605; 
Thonip.  Elecir.  §  379;  3  Suth.  Uam. 
§§971-980,  inclusive;  2  So<lg.  Dam.  §  894, 
and  others  bold  that  such  damages  may 
be  recovered,  while  Wood's  MayneDam. 
p.  74;  Cooley,   Torts,  271,— and  others 


seem  to  deny  it.  The  general  rule  which 
has  come  down  to  us  from  Kngland,  no 
doubt,  is  that  menial  aiiKuish  auil  suf- 
fering resniling  from  mere  negligence, 
unaccompanied  with  injuries  to  the  per- 
son, cannot  bo  made  the  basis  of  an  ac- 
tion fur  damages.    See  Lynch  v.  Knight, 
9  II.  L.  Cna.  177;   llobbs  v.  Uailroad  Co., 
L.  U.  10  Q.  IJ.  122.    And  doubtless  this  is 
the  rule  of  law  today  in  all  ordinary  ac- 
tions, cither  1  X  contractu  or  ex  delicto. 
15at  it  must  be  remembered  that  there 
are  exceptions  to  the  rule,  and  that  the 
telegraph',  as  a  means  of  conveying  in- 
telligence, is  comparatively  a  new  iu- 
venliun.     The  general   rule   above  re- 
ferred to  was  adopteil  long  before  t\\f 
electric    current   was    harnessed    :i  if' 
made  subservient  to  the  will  of  man. 
One  of  tlie  crowning  glories  of  the  com- 
mon law  has  been  its  elasticity,  and  its 
adaptability  to  new  conditions  and  new 
states  of  fact.    It  has  gr  iwn  with  civ- 
ilization, and  kept  pace  with  the  march 
of  events,  so  thai  it  is  as  virile  to-day,  in 
our  advanced  state  of  civilization,  us  it 
was  when  the  race  was  emerging  from 
the  dark  ages  of  the  past.     Should  it 
ever  fail  to  be  adjustablo  to  the  new 
conditions  which  age  and   experience 
brine,  then  its  usefulness  is  over,  and  a 
new  social  compact  must  be  entered 
into." 

597 


■itf-  -lynBt.^ 


8  350 


DAMAGES. 


[DIV.  III. 


C3 

CO 


iir"w 


the  ini'ssago  liuving  been  sent  at  liis  request;  in  olliers, 
the  seudee  was  tlie  i)laintUT,  a-nd  uo  contract  relation 
j|[rowing  out  of  any  request  to  tlie  sender,  could  be 
shown. 

The  Texas  doctrine  has  the  proper  limitation,  viz., 
that  the  company  ninsl  have,  either  I'roni  the  messn<i,e 
itself  or  otherwise,  notice  of  the  near  relationshij)  of 
the  parties,  and  the  {gravity  of  the  cas(»,  otherwisi'  the 
comj)any  has  no  reason  to  believe  that  any  mental 
.sufferinj;'  will  result  from  its  failure,  and  even  if  it 
arises  from  its  neglect,  such  damages  Avill  be  too  re- 
mote.^ In  a  recent  case,-  tlu'  telegran)  I'cad:  "To  W.  li 
Cottin,  Tyler,  Tex.:  A.  liracken  will  be  burie<l  to-mor- 
iv^w.  Come  at  onc(\  Answ<'r.  J.  M.  Knight,"  Cof- 
tin  and  liracken  were  brothers-in-law,  and  very  inti- 
mate friends.  The  message  was  not  delivered,  and 
Cotfin  was  unable  to  attend  the  funeral.  Rut  it  was 
held  that  he  could  not  recover  for  mental  anguish,  the 
court  saying:  "That  husband  and  wife,  parent  and 
child,  and  brothers  and  sisters,  nuiy  recover  under  the 
principles  before  announced,  is  settled  by  the  decisions 
of  this  and  other  courts  which  have  agreed  with  the 
decisions  ma<le  in  this  State  on  that  subject.  To  what 
degree  of  remote  relationsliip  the  inference  of  injury 
may  be  extended,  is  not  necessary  for  us  to  determine 
at  this  time,  but  it  is  evident  that  there  may  be  blood 
relations  so  far  removed  that  no  such  presum])tion 
could  be  indulged  by  the  jury.  The  right  to  i-ecover, 
however,  for  such  injuries,  cannot,  upon  principle,  be 
placed  upon  kinship;  that  affects  only  the  questions  of 
notice  and  proof  of  injury.  The  right  of  the  plaintiff 
to  recover,  and  the  liability  of  the  telegraph  comiuiuy 

1  West.  U.  Tel.  Co.  v.  Brown,  71  Tex.  Hep.  1023;  West.  U.  Tel.   Co.  v.  McMil 

723;    McAllen  f.   West.  U.   Tel.  Co.,  70  Inn,  30  .S.  W.  Ucp.  a'.iS. 

Tex.  243;  7  S.  \V.  Hep.  715;  West.  V.  Tel.  2  West.  I'.  T.-:!.  Co.  v.  Coffin,  ,30  S.  \V. 

Co.v.  Fore,  2G  S.  W.  Uep.   783;    10  .S.  W.  Hep.  896  (Te-t.). 

598 


DIV.  III. 

I  otliors, 
rclalion 
uukl  bi' 

inn,  viz., 

incssiij:;^ 
iislil])  of 
wise  the 
'  mental 
vou  if  it 
('  too  ro- 

ro  w.  i:. 

1  to  inor- 
t."  Cof- 
'ory  inti- 
'I'cd,  and 
it  it  \va« 
;uisb,  tlu^ 
I'tMit  and 
indor  tlie 
decisions 

with  the 

To  Avliat 
of  injury 
letennlne 

bo  blood 
sumption 
)  recover, 

icil)le,  bo 

L'stions  of 

plaintiff 

company 

CO.  r.  McMil 
;omn,  30  s.  w. 


CH.  XXTII.] 


DAMAGES. 


§300 


to  roapond  in  damagos  in  such  cases,  depends  upon  the 
general  rules  of  law  applicable  to  all  classes  of  breach 
of  contracts",  viz.,  what  wa^  ri  contemplation  between 
the  parties  as  the  natural  result    if  a  breach."  And  the 
court  continued:  "It  being  settled  that  mental  anguish 
constitutes  actual  damages,  for  which  a  recovery  may 
be  had  in  this  class  (»f  cases,  Avithout  concurring  phy- 
sical injury,  our  decisions  are  in  harmony  with,  and 
logically  follow  from,  the  general  rule  laid  down  and 
universally  ai>i)roved.     To  illustrate  the  .i])])lication  of 
these  general  i)rinci])les  by  our  eonrt   in  this  class  of 
cases,  and  (o  show  the  points  wherein  this  case  is  not 
embraced   in   the  rule  or  in   our  decision   heretofore 
rendered,  W(,'  will  stippose  that  (Vtttin  was  the  father 
of  the  deceased.     In  such  case,  u])ou  tlie  delivery  of 
the  message,  the  telegraph  company  must  have  taken 
notice  of  the  relationshi})  between  the  parties,  and, 
from  the  language  of  the  message,  must  have  known 
that  the  purpose  of  sending  it  was  to  enable  him  to  be 
present  at  the  burial;  therefore,  that  a  failure  to  deliver 
the  message  would  probably  deprive  him  of  being  so 
present     It  must,  also,  from  a  knowledge  of  the  laws 
of  human  nature,  common  to  all,  have  knoAvn  that 
such  failure  to  be  pr<'sent  at  the  funeral  AV(uild  cause 
mental  sulTering,  because  this  is  a  common  result  from 
such  a  state  of  case.     The  injury  in  such  case  is  the 
natural  result  of  a  failure  to  deliver  the  message,  and 
must  have  been  in  the   'contemplation  of  the  parties 
when  the  contract'    for  transmission  was  made.    The 
facts  showing  liability  being  ])roved,  the  jury  might 
infer  the  fact  of  mental  anguish,  because  such  is  recog- 
nized as  a  common  result  under  such  circumstances; 
no  proof  would  be  required  to  show  that  mental  suf- 
fering did  ensue.     In  the  case  under  consideration,  the 
tender  relations  alleged  to  have  existed  on  the  part 

f)99 


III 


•(?;■ 


i 

111 


t 
\--- 


§350 


DAMAGES. 


[BIV.  III. 


CO 


< 

-n 

3 


nxM 


of  plaintiff  towards  deceased  was  a  special  condition 
of  things,  not  known  to  be  usual  between  brothers-in- 
law;  and,  in  order  to  make  the  defendant  liable  for 
the  injury'  arising  out  of  these  special  circumstances, 
notice  must  have  biH'u  given  to  it  when  the  telegram 
was  delivered  for  transmission.  In  order,  therefore, 
for  the  plaintiff  to  have  recovered  in  this  case,  he  must 
have  proved  that,  at  the  time  the  message  was  deliv- 
ered to  it,  the  telegraph  comi)any  was  notified  of  the 
relations  existing  between  him  and  the  deceassed;  other- 
wise the  company  would  be  regarded  as  only  having 
in  contemplation  such  results  as  would  follow  in  tlie 
usual  course  of  things  when  brothei.,-iu-law  are  thus 
concerned,  and  not  to  have  contemplated  that  degree 
of  anguish  which  would  exist  in  case  of  a  brotlier. 
Neither  could  the  JU17  infer  mental  anguish  from  the 
fact  of  relationship  of  brotlier-in-law,  or  that  of 
friend,  or  upon  proof  of  the  existence  of  these  tender 
ties  between  them,  for  there  is  no  recognized  coiiiiuou 
rule  that  the  dearest  friends  sutTer  such  anguish  on 
like  occasions.  No  doubt,  cases  do  exist  in  which  the 
sulfering  of  a  friend  is  as  great  as  that  of  ii  brothei- 
undei"  like  circunislances,  but  it  is  not  the  common  and 
known  result.  There  being  neither  proof  of  notice  to  I  lie 
telegrapli  company  of  the  siXM-iai  circumstances,  nor 
of  the  actual  sulfering  by  plaint ilT,  thi>  Judgment  was 
unauthorize<l  by  the  proof." 

In  another  ca.se,  a  father  sent  a, telegram  to  an  olVicer 
in  another  county,  in  these  words:  "My  daughter,  A., 
has  run  off  Avith  K.  She  is  only  15  years  old.  Issut' 
no  license  for  them.'"  The  com])any  negligently  delayed 
the  message  until  after  the  li<'ensi'  was  issued,  and  tlu' 
ceremony  performed.  The  court  held  that  the  father 
could  recover  danuiges  for  his  mental  distress  caused 
by  the  marriage  being  an  unsuitable  one,  but  not  for 
600 


m 


ill: 


[DIV.  III. 

londition 
)tliors-in- 
iable  for 
^stances, 
tclogram 
liorefore, 
lie  imist 
as  dc'liv- 
'd  of  the 
d;  othoi'- 
y  liaviiij;' 
w  in  the 
are  llnis 
t  deforce 

brother, 
from  the 

that    of 

ie  tender 

cojuinou 

^uish  on 

•hieh  the 

brotlici- 
nioii  and 
ice  to  Ihn 
ices,  nor 
iient  was 

;in  ollicer 
;hter,  A., 
1.  Issut' 
,'  dehiyed 
,  and  tlu' 
lie  father 
IS  caused 
t  liot  for 


OH.  XXIII,] 


DAMAGES. 


§350 


that  of  his  wife,  because  this  was  not  witliin  the  con- 
templation of  the  parties,  there  being  no  evidence  that 
the  company  knew  he  had  a  wife.^  And  it  can  never 
be  within  the  contemplation  of  the  parties  that  mental 
suffering  will  result  where  no  real  cause  for  it  is  able 
to  be  shown.  Thus,  where  a  son,  away  from  home, 
wrote  to  his  mother  for  money  and  she  sent  it  by  tele- 
graph, but  it  was  not  delivered,  it  was  held  that  neither 
the  mother  nor  the  son  could  recover  damages  for  suf- 
ferings of  this  cliaracter.  As  to  the  mother's  claim, 
the  court  said:  "It  is  true  that  plaintiti:  alleges  that 
her  son  was  an  inexperienced  youth;  was  without 
means  at  an  hotel  in  Poughkeepsie,  N.  Y.;  had  written 
to  her  for  money;  and  she  was  anxious  to  have  it  trans- 
mitted to  him.  It  is  not  shown  that  he  was  in  any 
danger,  or  that  tliere  was  any  real  cause  for  mental 
suffering,  humiliation,  or  even  inconvenience.  The 
fact  that  a  loving  mother,  in  the  dark  hours  of  mid- 
night, may  conjure  up  a  thousand  forebodings  of  evil 
to  her  distant  boy,  when  he  is  in  no  real  danger,  even 
of  losing  a  single  hour's  repose,  may  furnish  trouble 
enough  to  her;  yet  it  gives  no  solid  basis  for  damages 
in  a  practical  business  transaction.'-  And  in  regard  to 
the  son's  suit,  the  court  said:  "It  could  not  have  been 
witliin  the  rea,sonable  coutem])latlon  of  the  parties 
that  ai)pellant  was  so  morbidly  sensitive  as  to  suiter 
great  mental  anguish  and  fear  of  being  looked  upon 
with  suspicion,  for  the  sinii)le  reason  that  he  did  not 
receive  a  remittance  of  money  promptly.  If  so,  eveiy 
debtor  who  fails  to  pay  his  grocery  bills  promptly 
might  be  subject  to  the  same  measure  of  damages, 
because  his  grocer  happened  to  be  a  morbidly  sensi- 


1  West.  U.  Tel.  Co.  f.  IToctor,  25  S.  W. 
Rep   811. 

2  Bicketts  r.  West.  U.  Tel.  Co.,  .SO  S. 


W.  Rep.  1105,  citing  Kowell  v.  West.  U. 
Tel.  Co.,  75  Tex.  20 ;  12  S.  W.  llep.  B34. 

601 


r 


§352 


DAMAGES. 


[DIV.  III. 


CO 

cr: 

< 

CO 


tive  man,  who  might  suffer  liumiliation,  anxiety  and 
mental  torture  because  his  own  bills  were  left  unpaid, 
and  others  might  look  upon  him  with  suspicion  and 
distrust.'" 

§  351.  The  Texas  Doctrine  Denied  in  Some 
States.  — On  the  other  hand,  in  Mississippi,-  Kansas,*' 
Dakota,^  Georgia,'^  Florida,''  Minnesota,'  Missouri,''  and 
in  the  Federal  Courts  in  several  circuits,'-'  it  is  lield 
that  damages  cannot  be  recovered  for  nif  ntal  anguish 
or  suffering. 

§  352.  Arguments  For  and  Against  the  Texas 
Doctrine.  — The  arguments  against  the  recovery  of 
damages  for  mental  suffering  are,  1st.,  that  they  have 
been  allowtnl  in  only  thret^  classes  of  cases,  (a)  where  a 
physical  injury  has  been  sustained,  in  which  event  the 
physical  and  the  mental  suffering  cannot  be  sepanited 
(b)  in  actions  for  breach  of  contract  of  mari'iage,  and  (c) 
in  cases  of  willful  wrong  alTecting  the  liberty,  character, 
reputation,  personal  security  or  domestic  relations  of 
the  party  injured,  and  that  courts  should  not  extend 
these  exceptions;  2d,  that  damages  for  mental  sulT<'r- 
ing  are  difficult  to  estimate  or  assess;  and  .'^»d,  that 
undesirable  and  frequent  litigation  would  follow  the 
allowance  of  damages  (»f  this  kind. 

The  first  argument  is  substantially  this,  that  because 
certain  rules  have  been  established  to  meet  the  condi- 


1  De  Vocfflerr.  West.  U.  Tel.  Co.,  .W  8. 
W.  Ri'p.  1107. 

2  West.  U.  Tel.  Co.  r.  HoKcrs,  9  South. 
Kep.  823. 

3  West  f.  West.  U.  Tel.  Co.,  39Ka8.  98; 
17  Pac.  Kep.  8i)7. 

*  Uiissell  r.  West.  U.  Tel.  Co.,  3  Dak. 
315;  1!)N.  W.  Uep.  408. 

«  Clin|pimin  f.  West.  U.  Tel.  Co.,  88  Ga. 
76.1;  15  s.  K.  Uep.  !»01. 

«  West.  r.  Tel.  Co.  r.  Saunders,  14 
Soatb.  Uep.  148;  oue  judge  disseuting. 

002 


7  Francis  v.  West.  U.  Tel.  Co.,  .10  \.  W. 
Itep.  KITS,  one  jinlRC  bciiiK  of  opinion 
that  there  ahoiilil  l)0  some  lenicdy. 

«  Connell  r.  West.  U.  Tel.  Co.,  III!  Mo. 
.H4;  n  S.  W.  Uep.  IM. 

»  West.  U.  Tel.  Co.  r.  Wood,  ,17  Fed, 
Hop.  47i;  Clare  r.  West.  U.  Tel.  Co.,  44 
Fed.  Uep.  5S1 ;  Crawson  r.  West.  U.  Tel. 
Co.,  47  Fed.  Uep.  644;  Tyler  v.  West.  V. 
Tel.  Co.,  ,14  Fed.  Uep.  471 ;  and  see  But- 
ner  i:  West.  U.  Tel.  Co.,  37  I'ac.  Uep.  1087 
(Okl.). 


mmm 


CH.  XXIII.] 


DAMAGES. 


§353 


Some 


tions  then  existing,  they  should  not  be  extended  even 
under  altered  conditions.  A  conclusiye  reply  it  would 
aeem  to  this  argument  is,  that  the  telegraph  company  is 
a  modern  agency,  and  new  doctrines  must  necessarily 
be  evolved  to  meet  the  exigencies  of  the  new  state 
of  affairs.  It  is  a  public  agent,  and  if  it  violates  its 
duty  to  the  injury  of  anotiier,  the  iujured  person  should 
not  be  denied  a  remedy.  It  is  as  much  obliged  to  carry 
a  message  announcing  the  illness  or  death  of  a  near 
relative,  as  it  is  one  maJcing  an  offer  to  buy  a  load  of 
hay,  or  a  house.  A  rule  of  law  which  says  that 
senders  of  the  latter  class  of  messages  may  recover  the 
damages  they  suffer,  while  those  of  the  former  class 
cannot,  gives  to  the  one  a  privilege  which  seems  unjust 
and  illogical.  Its  duty  is  to  transmit  and  deliver 
promptly  and  accurately,  so  far  as  care  and  diligence 
on  its  part  can  efTect  this,  and  where  this  is  omitted,  it 
should  answer  for  the  injury  resulting,  whether  to  the 
pocket  book  or  to  the  feelings,  provided  only  that  the 
injury  is  the  natural  and  direct  consequence  of  tlie  ne"-- 
ligent  act. 

In  answer  to  the  second  argument,  it  is  enough  to  say 
that  the  courts,  though  fornuM'ly  considerably  fettered 
by  this  fear,  are  now  uniformly  oi)])osed  to  the  idea 
that  because  it  is  dilticult  to  ascertain  the  exact  amount 
of  comi)ensation  whieli  ought  to  be  made  for  an  injury 
necessarily  resulting  from  the  wnmgfnl  act  of  another, 
it  is  a  suOici  .Mit  reason  why  any  compensation  should  be 
refu;svni.'  And  this  argument  might  be  urged  with 
precisely  the  same  force  in  all  those  cases  where  mental 
and  bodily  suffering  combinwl  are  treated  as  proper 
elements  ()f  damage. 

The  third  argument  certainly  come.s  with  poor 
grace  from    the  judges  of  tribuuals  (established  for 

J  Lawson.Contr.,  §  461. 

>603 


f  "- 


1 — 'IT 


§352 


DAMAGES. 


[DIV.  III. 


i 


i! 


ilii 


cr: 


the  very  purpose  of  giving  compensation  to  the  suf- 
ferers of  injuries  at  tlie  liands  of  others.  How  can  it  be 
"intolerable"  for  a  citizen  to  seek  in  a  court  of  justice 
a  remedy  for  a  wrong?  And  as  for  the  fear  of  fre- 
quent litigation,  it  should  be  rememberc<l  that  a  tele- 
graph company  is  not  an  insurer,  and  that  suits  will 
hardly  be  more  frequent  than  its  acts  of  negligouco, 
its  breaches  of  duty,  and  of  contract.  "If  the  ruU> 
opens  up  a  vast  and  fruitful  field  of  litigation,  it  is 
only  because  telegraph  companies  fail  to  do  their  duty. 
We  cannot  think  that  a  rule  which  will  tend  to  make 
telegraph  companies  more  careful  in  the  matter  of  de- 
livering their  messages,  will  be  fraught  with  such  fear- 
ful results  as  counsel  imagine.  The  single,  plain  duty 
of  a  telegra])h  company,  is  to  make  transmission  and 
delivery  of  messages  entrusted  to  it,  with  promptitude 
and  accuracy.  When  that  is  done,  its  responsibility 
is  ended.  When  it  is  omitted,  through  negligence,  the 
company  should  answer  for  all  injury  resulting, 
whether  to  the  feelings  or  the  ]>urse,  one  or  both,  sub- 
ject to  the  proviso  that  the  injury  must  be  the  natural 
and  direct  consequence  of  the  negligent  act.  We  can- 
not conceive  of  any  danger  in  such  a  rule.  It  seems  to 
us  to  be  in  accord  with  the  enlightened  spirit  of  modern 
jurisprudence.''^ 

The  law  «'oncerning  the  duties  and  liabilities  of  tel- 
egraph companies,  may  be  said  to  be  yet  in  its  infancy; 
it  can  hardly  be  expecte<l,  at  this  enrly  day  in  its  his- 
tory, to  be  settled  in  all  its  parts  by  a  line  of  concuri'ing 
decisions,  but  it  is  believed  that  the  Texas  doctrine, 
founded,  as  it  seems  to  be,  on  ])rinciples  of  right  and 
justice  will  ultimately  prevail.- 


1   Mentzer  v.  West.  U.  Tel.  Co.,  ante. 


604 


2  See  Tliomp.  on  Klectricity,  Art.  V., 
{§  378-393. 


,DIV.  Ill, 

the  suf- 
.*iin  it  be 
f  justice 
'  of  fre- 
t  a  tele- 
jits  will 
;;ligenoo, 
the  rule 
on,  it  is 
eir  duty, 
to  msike 
er  of  de- 
ich  foar- 
aiii  duty 
4on  aud 
nptitude 
nsibility 
Mice,  the 
I'sulting, 
oth,  sub- 
■  natural 
We  can- 
seems  to 
'  modern 

's  of  tel- 
in  fancy; 
II  its  liis- 
ncui'rin<»' 
doctrine, 
iglit  and 


city,  Art.  v., 


sansv- 


wmmmmmmm 


TABLE  OF  CASES  CITED. 


The  References  are  to  Sectioiis. 
A. 


Abbe  V.  Eaton,   100. 

Abbergor  v.  Miirtiu,  211. 

Abbott  V.  Nat.     S.    S.   Co.,   182. 

Abbott  V.  U.   Co.,   2!K!. 

Abrnhiuii  v.  Niiiiii.    •!(). 

Abriibiiin  v.  Tel.   Co.,  317. 

Abriinis  v.  It.    Co.,    i:!7,    142. 

AchtcnbaKfii  v.  Watortown,   3-11. 

Ackcrsoii   V.  n.   Co.,   ;«S. 

AckU'.v  V.  Kiiicli,  r>\. 

Aikb'.v  V.  Kcllofxi;,    127. 

A(biiTi.s  i>.  CarlisU',    ;{41. 

AdniMs  V.  ("lark.   21'). 

Adaiii.s  V.  <'UMn,  ~S. 

Adams  r.  Ni'w  OiMonns    Steam     Co 

85. 
Adiuiis  V.  O'Connor.   1.1,  (i.S. 
Aduin.-^  V.  K.    <'o.,   ."iOS. 
Ad.'inis  \',\.  Co.  V.  Itl.inkcnstoin,    20(1. 
Adams  lOx.  ( 'o.  ji, 
A(biins  ICx.Co.   V. 
Adams  i;.\.('o.   v. 
Aibims  l^x.f'ri.  V. 
Adams  lOx.Co.  v. 
Ad.nms  lOx.  Co.  v 
Adams  K\.  <  'o.  v. 
Adams  Kx.  Co.  v 
Adiims  V.\.  Co.  V 
A(bnns  Kx.  Co.   %> 
Adams  K\.  Co,  r 

l."2.  l,-.",.  I.Vt,  :!.,.,. 
Adan\s  Kx.  Co.  v.  Roairan,   1.17, 
Adams   i:x.  Co.  r.  Scbior,  1 1'.l. 
Adiims  Kx.  Co.  v.  Sbarpli'ss,  l.'SO    MS 
Adiims  Kx.  ("o.  t>.  Stettanur.s,  l:!7,  l.;il'. 

1  12,   1  111,  ;i:i4, 
Ad;ims  Kx.  Co.   v.  AVilsou,  IOC. 
Adriaiic,  'riio,  loii,  :',:',>i. 
Adsit  If.  lli-mty,  :!.■!(). 
Aetna    Tiis.    Co.  j,.  AVlioeler,   ini,   104, 

lO'i,    1(ll». 
AKncw  V.  .Tobuson,   .".4,   m. 
Aiiiww  V.  Tbo  Contra  Costa,  80,  123. 
AlK'cn  V.  Tt.  Co.,  i(i;{. 
Alkcn  V.  K.    Co.,    ]()3. 
Aiken  v.  Tel.   Co..  .'{17,  318,  319. 
Alnsworth  v.  IJowen,   CO 
Alulr  V.  U.  Co.,  142. 


('rossiip,  ,s;i. 
I);irncll,  2<ll. 
K-bcrt,  IM-l. 
Findrick.    137,  UK!. 
Cutbrie,   137,   3:{l!. 

Harris.    Kio.    1.-|7. 

Ilavncs,    i:i<.»,    14!». 
.  ITolines,   142, 
,  King,   14S.   140. 
,  I.oeb,    3.".!). 

Xock,    1:37,  140.  11!). 


1,-S. 


<.o.,  100. 
Ma.  \:c.  U.  Co.  V.  Tbomas,  101,  137. 
\la.   i*^c.   U.   Co.  V.  liittle,   137,   142. 
\la.  &c.   It.   Co.  V.  YarborouL'b,  200. 

\lhtn    .1,     T»i.<.^.lit.      TT 


Alabama  &e.  R.  Co.  v.  KIdd,  22 
Ala.    &i.^  It,     Co.  V.  Momit    Vernon 

Ala'  " 
Al 

Al ,.  ^ 

All)in  V.  I'resbv,   77. 

AlbriKbt  (!.  IVmi,   84,    12,'?. 

Aldou  V.  I'earson,  10,  337,  S.'JS. 

Aldoii  V.  It.  Co.,  2;'.2. 

Aldricli  V.  It.  Co.,  !),  40,  47. 

AldridKc  V.  11.  I'o.,  101. 

Alesla,  Tlie.  102. 

Alexander  v.  (ireene,  83,  S',,  1,39,  102. 

Alexandria  K.  Co.  11.  Rurke,  02,  05. 

Aiine,   Tlie,   1i;2,   ITS. 

Allen  V.  C.undcii  ^e.  Stenm  Co.,  347. 

Allen  i'.  li.vlicrs,  01. 

Alien   V.  II^iiii.   27. 

V.  U.   Co.,  210,  232. 

V.  S.irUiidiT.  40,  83. 

!•.  S.\v;i|!,   II.-.. 

V.  Siilih.  71, 

V.  Wil!;int,   .•!41. 


Allen 
AlU'n 
Allen 
Allen 
Allen 


AUender  r.  It,  Co.,  227,  300,  312,  347. 

Allenlon  &e.  U.  Co.  v.  Dunn,  348. 

Allerlon   c.  11.   Co..   22',t, 

Alllnu;  V.  U.   Co.,  271,  273.  . 

Ail.vn  V.  It.   Co,,  311. 

Alt  V.  Weideiilinri;-,  27. 

Anu'riea,  The,   102 

Am 


Am. 
Am. 
Am. 
Am. 
Am. 
Am. 


ContiMct  <'o.  u.  Cross,  272. 
Rx.  Co.  V.  r.aldwln,  201. 

Kx.  <'o.        '■  

Kx.  Co. 
Kx.  Co. 
Kx.  Co. 
Kx.  Co. 


V-  lI;i;.'Kard.  2(M). 

V,  llMli'o,   20,"., 

V.  llaekett,   201. 

V.  1  locket  t,    84. 

V.  l.i'sem,   1.S.5,  20ii. 

Am.  Kx.  Co.  V.  Milk.  200. 

.\m.  lOx.  Co.  V.  I'erkins,  133. 

.\m.  lOx.  Co.  V.  Uoljins<.n.  201. 

Am.  Kx.  Co.   11.  Snnds.    r.V.\   142,   338. 

Am.  Kx.  Co.  V.  Srliier.    IS.'i,   201. 

Am.   Kx,   Co.  V.  Seeond      Nat.    Uauk, 

101,   10;{,  1:111.  1  IS.  ;!;!7, 
.\in.  llx.  Co.  V.  Snillh,    1",0,   214. 
Am.  Kx.  <'o.  r.  Spellnmii.   1,50. 
Am.  Kx.  Co.  t'.  .Stuck,   200, 
Am.  K\.  Co.  V.  Wolf,   201. 
Am,  llapid  Tel.  Co.  V.  Conn.  Tel.  Co., 

.323. 
Am.  Stenm.  Co.  v.  Bryan,  289. 

605 


TABLE   OF    CASES   CITED. 


The  References  are  to  Sections. 


m 


o 

:q 

c: 

•Mm 

< 

-rj 


til'  -^ 


1  I 


t).    Auburn 


240. 
,  .'i.'iS. 


((i, 


10.?, 
Co., 


1SI, 
100, 


JC.C. 


Am.  Steam  Co.  v.  Lnndroth,  2.32. 
Am.   Truns.     Co.  v.  -Moon',     137,     150, 

;t«. 

AmiTliic  V.  I'orteous,   320. 
Ames  V.  Uelili'ii,   13. 
Auics  V.  Joriliiii,  301. 
Ames  V.  I'almiT,  2t!,  21.">. 
Amiiiblo  Nancy.   The.  318. 
Amies  V.  Slovens,    llio. 
Anchor  Line  v.  Datef,  l.'iT. 
Anderson  v.  U.  Co.,  L'O."),  ;!4l. 
Andrews  v.  K.   Co..   L'T:i,  ,'JOO. 
Andrews  v.  lUcliniond,   8. 
Andrews  v.  Scotten,    .^3 
Androseofigln      U.      Co 

Hank,  0. 
Aujjle  V.  U.  Co.,   100 
An^ns   V.  Dlckerson.   42. 
Annas  v.  K.  Co.,  137,  248, 
Anonymous  v.  Jackson, 
Antoinette  ('.,  The,   IVA 
Appleton  V.  Donaldson, 
Arbuckle  v.  Thoinpson.   211. 
Arcndi>   Hotel   Co.   v.  Wlatt.   74 
Arcber  v.  The  Adriatic,   170. 
Archer  v.  Walker.   13. 
Arc]iil>ald  v.  Arnall.  !".!1. 
Ard.'tn  S.  S.  Co,  v.  Tbeband, 
Arend  tf.  Liverpool     S.     S. 

170.   172, 
Arendnle  v.  Mor};nn.  r>'X 
Aroiit  V.  Siiuire,  47. 
Ariiins  D.  Hrickloy,  27. 
Arkaiis.Ms  &e.  U.   Co.  t>.  Canmau, 
Armentrout  v.  U.   <'o.,   125. 
Arniett   V.  Foster,  2114. 
Arnitleld  r.  Iluinpbroy,   47. 
Arniistead  v.  Wllde,  7'.t.  80. 
Armory  v.  Delanilrie,   15. 
Armiir.v  v.  MctSre^ory,  345. 
.Armstrong;  v.  U.    Co.,   2.'U. 
Arnob)   V.  Halleiibako,   84. 
Arncdd  v-  Jones.  123. 
Arnold   V.  Nnt.  S.  S.  f^o.,  201. 
Arnold   v.  R.  Co..   1.30,   1.57,  248,  2C.0 
Ariiot  V.  Uniconnier.  332. 
Arrowsniitli  v.  K.   Co.,  200. 
Asli  V.  Snvape,   51. 
.\slien(lon  V-  K.  Co.,  142. 
Astimore  v.  Penn.     Ktcani     Co., 

137.  102. 
Ashtoii   V.  Atlantic  I?ank,  ."57. 
Ashton   V.  K.   <'o.,  ItO.S. 
Ashton's  Appeal,  .57. 
Aston   V.  Heaven,  232. 
Astrtip  V.  Lewy,  HM!. 
Atchison   &c.    U.    Co.  f.  Hrewer 

334. 
Atchison  &c 
Atchison    &c. 

11.   Co., 
Atchison 

20S. 
Atcbison 
Atchison 

105. 
Atchison 

80.   137. 
Atchison  &P.  n.  Co.  v.  Weber,  20.. 
Atkinson    V.  Bell,  8. 


.S5 


2,85 


101. 
&o. 

&r. 
&c. 


n.  Co.   V.  Cochran,  202. 
R.    Co.  V.  Denver   &■<•. 

R.   Co.  r.  Oants,    244, 


R. 
H. 


Co.  V.  Johns, 
Co.  V.  Uonch, 


230, 
101, 


&c.     R.     Co.  v-  Wnshbiiru, 


Atkinson  v.  Manks,   23. 

Atkinson  V.  K.   Co.,  205. 

Atlanta  iVc.    R.    Co.  v.  Tesns    Grate 

Co.,  103. 
Atlantii-  iS;c.  R.  Co.  v.  Ayers,  304. 
Atlantic    iV;c.    R.    Co.   v.  Condor,    iiOS. 
Atlantic^   iVc.    R.    Co.   v.  Dunn,  208. 
Atly.  Cell.   V.  Kdison  'Pel.  Co.,  323. 
Atwati  r  V.  Mower,   51. 
Atwaler  v.  Sawyer,  73. 
Atwood  V.  Reliance  Trans.  Co,,  130. 
Audenrie<l  v.  R.    Co.,   05. 
,\iierbacii   V.  R.  Co.,  212. 
AuKusIa  i^c.  R.  Co.    i;.  Renz,  30C. 
Auiciil/,  V.  I'ortcr,   5,   44. 
Aurora  Itranidi  R.  Co.   v.  Crimes,  341. 
Austin   V.  R.   Co.,   210,  22.5. 
Austin   V-  ScliKUnni,  8. 
Austin   V.  Talk.    170. 
AviuKcr  V.  It.    <'o.,    SO. 
Avcrii.':,'   V.  R.    Co..   207. 
Aycr   i'.  Tel.  Co.,  :!10,  .'i^O,  3,42,  310. 
Avers  V.  R.   <'o.,   105. 

Iiii'i. 

.\nslrallan    RankiuK 


Ayniar   v.  .\stor, 
Avre    V.     So\ith 

'Co.,  08. 
Ayrcs  v.  I!.   Co 


„ ,80,  80,  1.54,  VV2. 

Ayros  v.  Western   Co.,   137,   VM. 

B. 


Rabcock  V.  Ilorbcrt,  81. 

lbib( k   V.  I.awson,   70. 

Rabccxk  V.  Murphy.    40. 

l!al)c<'ck  V.  R.  Co.,  101.  107,  los, 

R.'icklionse  v.  Sneed,   12;!. 

Hackus  V.  Start,   47. 

Radlain   v.  Tucker,  51,  .55,  (55. 

Railev  V.  Colby,   21.  22. 

Railcy  V.  Quint.    2<i. 

Hailev  V    R.    <'o.,    :<01. 

liallev   l».  Shaw.   214. 

liainliridirc  v.  Flrni.-*tone,  .34. 

Ibiird   V.  Daly,    40. 

Ralrd   V.  n.   Co.,   152. 

Raker  i;.  Arnot.  00. 

Raker  V.  r.rluson.   130,  .5.13. 

Ibiker  V.  Dessinu-r.  70. 

Raker  v.  R.   Co,,   .SO,   11,5,   137. 

Rilker   t',  Roberts,  8, 

Riik-'r  r.  Woodruff.  S. 

r.akewell  V-  Tnlbolt,  3.3. 

Raldwln  V.  Ami.   Kx.  Co.,  84, 

Raldwin   v.  Rradley,  .53. 

Italdwln  r.  Collins.  13.,   .42,  14.?. 

Raldwln    v.   Tel.    Co.,   lil.,   .»-0, 

342,   340. 
Ralfe   V.  West,  10, 
Rail   V.  I.lnrw.  11':.2.!.    ,, 
Rail   V    R.  C'>-.   !""■   1"r 
Rnllenllnp  r.  R-   Co,.  Oi, 
Rallou  V.  Farnuin.    20;), 
RaltlMiore,   V.  Marroll,   341. 
Ralllniore   Ins.    Co.  v.  Dalryinpic 

nalllinore  Pocket  Co.  v.  Smith 
Rait,  &c.  R,  Co.  V,  Blocher,   "'■ 
348. 


llCt. 


201. 


321, 


120. 
200. 


202, 


.53, 

■1. 
2t»8, 


606 


wasBP 


TABLE   OF   CASES   CITED. 


The  References  are  to  Sections. 


Bait.  &c.  R.  Co.  V.  Brady,     l-l.t,     iv.ir>, 

Bait.  &c.  n.  Co.  V.  Brown.    KiO. 
Halt.  &c'.  It.  Co.  V.  Cjiiiipbcll.  240,  201 
Bait.  &-C.  U.  Co.  V.  Davis.   ];(1. 

V.  l»fiKM\-,  2;;(). 

V.  Harris,   2!tl. 

V.  Jones,   'M2. 

V.  Kemp,  347. 

V.  r-o;illc'y,    2(li»,    .312, 

V.  Loonluirdl,  .'iO". 

Co.  V  McDonald,   200, 


Bait.  &c.  U.  Co 
Bait.  &c.  K.  Co 
Bait.  &c.  U.  Co 
Bait.  &c.  U.  Co. 
Bait.  &c.  1{.  Co 
Bait.  &c  R.  Co, 
Bait.    &e.    R. 

2(>7. 
Bait.  &c.  R.  Co 
Bait.  &o 
Bait.  iVc 
Bnlt.  Arc. 
Bait.  iV.r 
Bait.  \c 
Bait.  iVrc 
Bait.  & 


V.  McWhinncv,  101. 
u.  Co.  V.  Xocll,  :i-io.' 

It.  Co.   V.  riiiiiplirc-v,  20'.». 

U.  Co.  V.  I!atlii>()nc",  l:!7,  KG. 

U.    Co.  v-  Sclimniiclii-r,  10"'. 

K.  Co.   V.  Si'lnvlndllng,    230. 

U.  Co.  V.  Sfott.  1,'iS. 

U.  Co.  V.  Scui'll,  ;{J4. 
Bait.  &c.  U.  Co.  V.  Skcpls,  l.'^,7. 
Bait.  &c.  R.  Co.  V.  .Stat"',     2.'{4,     312 

340. 
Bait.  &L-.  R.  Co.  V.  Swan.  ?A0. 
Bait.  iVe.  R.  <'o.  v.  AVliiincrc,  341. 
Bait.  iV.-!'.  R.  <"o.  V.  WlL'litniiui,        231, 

340,  347. 
Biilf.  .i^c.  R.  Co.   V.  Wllkons.  11.".. 
Bait.  iV;c.  R.  Co.   V.  M'ilkliisoii.  3i)(i. 
Bait.  &i'.  R.  Co.  V.  Wortliinirton.  340. 
Bait.   &c   Stoiun  Co.   r.  Sniillj,  2.S,S. 
BaniticfK  V.  H.    Co.,    8(5. 
Baniicnula,  The,  338. 
Bancroft  v.  M  'rcliants  Dis.  Co.,  100. 
Bancroft   v.  Deters.   21.3. 
Bancroft  v.  R.    Co..    102. 
Banfield  v.  Haeper.   23. 
Bantield  v.  Whipple.   42. 
Bank  v.  (Jnclniartln,   76. 
Bank  v.  Marshall.  58. 
Bank  v.  R.   <"o.,  0.3. 
Bank  of  Amoriea  v.  MoNell,  70. 
Bank  of  Baldwin  v.  U.  Co..  ll.'i. 
Bank  of  Kentncky  v.  Ailanis  Ex.  Co., 

S4.  1,37,  100,  102. 
Bank  of  New  Orleans  v.  Tel.  Co., 321. 
Bank  of  OsweRo  v.  Doyle,  22. 
Bank  of  Rochester  v.  .ioties.  .51. 
Bank  of  Rntland  v.  ■\Voo.lriiff,  .50,  0.5. 
Bankard  v.  R.   Co..  3.".«.  .3.30. 
Ban.sonier  v.  R.  Co.,  201,  202. 
Barher  v-  E.sfex.  341. 
Barclay  v.  Cllde.  201. 
Barrten  v.  R.  Co..  307. 
Rnrdwcll  v.  F-\.  Co.,  101. 
Bardwoll  v.  R.   Co.,  312. 
Barker  v.  Coflln.  241.  242. 
Barker  v.  R.  Co.,  204 
Barnard  v.  Kobbe.  22. 
Barney  v.  Prentiss.  143,  1.54. 
Barney  r.  R.  Co.,  2.30. 
Barney  v.  The  D.  R.  Martin,  222,  224. 
Barrett  v.  Cole,  70. 
Barrett  v.  R.  Co.,  103,  160. 
Barrett  v.  Roeers,  170. 
Barrett  v.  Williamson.  12. 
Barron  v.  Eldrldpe,  112. 
Barron  v.  R.  Co.,  294. 


Co.,    324, 


222. 

loliTiJos. 


310,    320, 


1 00. 
2.57, 


205.  207, 


Barron  v.  Rhlnelander,  .58 

:S''3"8"  ^'"""    ^'"''  ^"'" 
Burrow  v.  I'axton,  .51 
Barry  v.  Kilinunds,  .348 
Barry  v.  Oyster  Bay  \c.  Co 
Barler  v.  Wheeler,  10:',,  l:{7 
Bartlioloniew  v.  R.  Co,  287' 
Bartlclt  V.  Crozier,  .3;!l) 
Barllcit  V.  .Johnson.  (;!l 
Rartielt  V.  n.  Co..  i:!7,  204. 
liai-llelt  V.  Tel.    Co.,    317, 

312,  .•!4!). 
Barton  v.  R.  Co.,  ,307. 
Harwell  ^'.  North.    110. 
Basin  V.  Steamship  Co., 
Bass  V.  n.  Co.,  2.51,  2,5.5, 

318. 

Bassett  v.  R.  Co.,  188. 
Bastard  v.  Bastard,  02. 
li.iteet  I).  Hiirllev.  47. 
Bates  V.  It.  Co.,  217.  218. 
Bales  V-  Stanton.  23.  211,  200. 
B.itsoii  V.  Donoviui.  142. 
Biitterson  V.  VoKcl,  Jill.  81. 
Baxendale  v-  R.  Co.,  02. 
Baxter  v.  I.eland.  100,  100. 
Baxter  D.Wheeler.  100. 
Bin-  (3ty  &c.  R.  Co.  v.  Austin,  296. 
Bay  ley  v.  R.  Co..  208. 
Bavlles  V.  Fisher,    10. 
Bayliss  v.  Lintott,  271. 
Bazln  V.  Steamship  Co.,  205,  .3.38. 
Beale  v.  I'osey,  74.  81. 
Beam  V.  Southern  Bank,  .54. 
Bean  v-  Bolton,    20. 
Bean  v.  Creen.  KlO,  137,  140. 
Bean  v.  Stnrtevaiit.  81. 
Beard  v.  R.  Co..  122.  234. 
Beardsleo  v.  Rlchanlson.  22.  20.  .3.3. 
Bearse  v.  Ropes.  100.  .'mM.  337.  :'.3k. 
Beaslev  v.  Tel.   Co..   310,   320,  350. 
Beatty"  v.  (lllmore.  :!41. 
Bean<'hnnip  r.  R.  Co..  2<'>S. 
Beanpre  v.  Tel.  Co.,  310. 
Beck  V.  Evans.   130.  155. 
Becker  v.  Ilaynes.  81. 
Becki-r  v.  Smith.  8. 
Becker  t>.  Tel.    Co..   320, 
Beckford  v.  Crntwell.  125. 
Beckmiin  i).  Shonse.  84.   130. 
r.eehe  v.  Avres.  241.  203. 
Beekinaii  v.  U.  Co.,  218. 
nceman  v.  I,.nwton.  51,  70. 
Beers  V.  R.    Co..   341. 
Behin  v.  Tel.    Co.,   317,   340. 
Belden  1>,  I'erklns.   51.  .57. 
Belfast  K,  Co.  v.  Keys.  272,  278. 
Belfasl,   The  v.  Boon,   120. 
Beleer  v.  DInsmore,   133,    140,    IGO. 
Bell  V.  Drew.   272. 
Boll  V.  Monahan.  15. 
liell  V.  rnlmer,  27. 
Bell  V.  n.   Co..  202,  205,  345. 
Bell  V.  Reed,  12.5. 
Beller  v.  Schtdtz,  38. 
Bell    Tel.    Co.  V.  Bait.    &c.  Tel.  Co, 

323. 
Bell  Tel.  Co.  v.  Com,,  323. 

607 


'    iri: 


\<J' 


TABLE  OF   CASES  CITED. 


The  References  are  to  Sections. 


ii'l 

I 


mv 


,< 

CO 

CO 


3J: 


BPllona,  The,  IW. 

Bellows  l>.  Denlsou,   13. 

lU'iibow  V.  U.  Co.,  'JOl. 

Ht'iidotson  V.  KrciH'h.  7S,  81. 

Bonjninln  v.  Stromplc,   (!S 

Hi'imctt  V.  Hyniiii,   11.':!,   127,  200.  204. 

BeuiR'tt  V.  Uuttoii,  137,  140,  217,  21S, 

222    22'{. 
Bp'niil'U  V.  Fllynw,   100,  .^^7,  338. 
Hcmictt  V.  Mcllor.  74,  77. 
BcuiU'tt  l>.  O'lirii'ii,   ;!7,   ;!.S,   ;(32. 
ncnnctt  V.  U.   Co.,   V>S.  211,  202,  31."), 

Bennett  V.  Stenir.b.   Co..  217,   218. 

Bennett  v.  Truelmily,  ,'{0l. 

I'.ensDii,   Kxiiiirle.  02. 

Henson  v.  N.  .1.   TriniK.  Co.,  340. 

lieiisiin  V.  Tltconili,   341. 

Itentley   v.  BustJird.   100. 

Benton  v.  B.    ("o.,   207,   341. 

Benton  v.  AVilkinson,   23. 

Ber«  V.  K.  Co.,   101,   107. 

Bei-K  V.  Stenin.   Co.,   103. 

Ber^ersexen,    The,    100. 

BerKlielni  v.  U.    Co.,   289. 

Beijf  V.  B.    Co..    102. 
.Berkshire  Woolen  Co.  v.  Proctor,  12, 
74,    70,    70,    ,S0,   ,V2,   .".27. 

BernuKln,   Tlie,   142,  1.S2. 

Kernon/i,  The,  :\\'>. 

Hernsteln  v.  Sweeney,    72,    81. 

Herrlnner  v.  U.   Co..  2i)1. 

Herry  v.  Cooper,    1.'17.   3,'{8. 

Herry   v.  (iihOons,  .">. 

Herry  v.  Miireix,    40. 

Berry  v.  B.   Co.,  2t>0.  310. 

Bethea    v.  B.    <'o..    240,    244,    200. 

Bells  V.  riirniers"   I, (van  Co.,  i:!.''>,  137. 

Bevnn   v.  Waters.   27. 

Hi'ver  V.  Tonillnsoii,   101. 

Bevis  V.  B.   Co.,   ;!2.".,  ;!2S,  343. 

Bier  t>.  Stan('"ril    .Man.    Co.,   329. 

Tii^'elow  V.  Healon.    20.   • 

Bici>l(iw  v.  ilutlaiKl.  .•{41. 

BI;,'('low   I'.  YoniiK.  0(». 

Binuliiiin   V.  I piim,    131,    207. 

Bin^'liam  z».  Ito^'ers.    1.",!>. 

BImiev   V.  If.    <'o.,    ."il". 

Bimiev   i'.  Tel.   Co.,  319,  .320. 

Binns  V.  I'ivrol,   21."i. 

Blnl   V.  <'riiinwell,    lOfl. 

Hiri-'c  i>.  <!;irillner,    .'Ml. 

Blrketf  J'.  It.  Co..  201.  293. 

BIrkett   v.  Tel.    Co..   .320. 

BIrkett   V.  Willan.   12.".. 

BlriMM-  V.  Tel.    Co.,   :i20. 

Blshoj.  V.  Williamson.  .^^0. 

KNsel    V.  <'Mnipl>ell.    177. 

Hissi'll   V.  niintln;.'ilon,  I.*"). 

BIssell   V.  I'riee.    100.    170. 

Hissell  V.  K.     Co.,   .3.3,     100,     1,39,   I.-.7. 

2.3(1.    217,   24H. 
Black  V.  Bou'i'rt.  70. 
Black  V.  Canal   Co..  20(1. 

Bi!i<-k  V.  n.  Co.,  i.'.4,  ^r,H,  .34.'-.,  347 

Black  V.  Trans.    Co..    1.37,    142. 
Black  Hawk,  The.   100. 
Blackinore  v.     B.    Co.,    225. 


BlucUwell  r.  Wlswull, 

608 


300. 


Blnek  Warrior,   The,  IfiO,  170. 

Ulackwood  V.  Brown,   !ir>. 

Blade  v.  U.   Co.,    1(10. 

Blair  v.  B.    Co.,   22.5,  247. 

Blalsdell  v.  B.   Co.,   188, 

Blake  v.  Ferls,  ,300,  301. 

Blake  v.  Kimball,   44. 

Blake  v.  I'aid,    ,5,'). 

Blake  v.  B.   Co.,  .347. 

r.lakeniore  v.  B.    Co.,   24. 

Blanchard   i;.  Isaacs,   84,    114,   116. 

I'laiichard  v.  .loues,    272. 

Blanchard  v.  I'aKc,  211. 

I'.laiid   I',  \dams  Kx.  Co.,  123. 

Bland   v.  B.    Co.,    224,   200,    201. 

Bland   v.  Womack.    ,33. 

Bliircom  V.  Broadway,   !i5. 

r.lin  V.  Mayo,    4H. 

Bliss  V.  Bull.   I'al.  Cnr,  Co.,  ,324. 

Bliss  V.  Schanb,    1,">. 

Bill/.  V.  Cidon  S.  S.  Co.,  102. 

r.liveii  V.  B.   Co.,   l.'M,  209. 

Bhick   V.  B.    Co.,    10,3. 

Blood   V.  Brie  Sav.   Co.,  60. 

ItloomiiiKton  V.  Borers,    341. 

Blossom  V.  Dodd,    14.S.    l.-,o,    l,-,4 

lilossoiii  V.  <irlflin,   112,  150. 

r.lossman     v.  Hooper,  271. 

Bine  .Ia<d;et,   The.   100. 

Blum  V.  South.     I'ull.    Cur    Co.,    '',S0 

.■:24.    .32.'.,   .328. 
Blum  V.  The  Caddo,   211. 
Bluniantle  v.  H.    Co.,   272.   2SI. 
Blumenlhal  v.  Brainerd,  137,  14.'>,  140 

201,   202.   20,".. 
Bliimenthal  v.  B.    Co.,   271,   """ 
Boai'dman   ii.  Holmes,   52. 
I'x.holiiik,    The,   201. 
r.odenham   v.  I'.euiU'll,    125. 
Bodkin   V.  Tel.    Co.,    ,340. 
I'.odwtdl   II.  Br.'ii;;,'.   ,S1. 
Bodwell   ji.  Florence,   81. 
Moehl   V.  B.    Co.,    142. 
Br.ehni  V.  v.    S.,   58. 
Bou'crt   V.  HniKht,    47. 
Bohanuan  v.  Hammond,   123. 
Bohaniian  v.  SprliiLMleld,  .5. 
Boliler   V.  Owens,    .SO. 
Boi<e  V.  B.    Co.,    242. 
B(.les  V.  B.    Co.,   .332,  .3.34. 
Bolan  V.  Williamson,  .3,30. 
I'ollon  V.  '"aider.    12. 
Boniar  v.  .Maxwell,  271,  272. 
Bonanno  v.  The   Boshenna   Bay,   102, 

178. 
Bonce  V.  n.    Co..   84,   ,341. 
Bond  V.  I'rost,  170. 
Bond  V.  The  Cora,  127. 
Boniu-r  V.  lie   Mendoza,   328. 
Bonner  r.  Cletui.  .304. 
Bonner  v.  Welborn.   72. 
Bonse.v   v.  Amee,   51.   70. 
Boon  V.  The  Belfast,  129. 
Boorman  v.  Am.    Kx.    Co.,    1.37,    14.S, 

140.   1.-2. 
Boolhby  V.  Plalsted,   211. 
Borileaiix  v.  B.    Co.,   201. 
Boskowitz  V.  Adams  Kx.  Co.,  13.3,  1.37, 
139,   152,   155,   103,  330. 


T2, 


),   170. 


"MumnnHmmpi 


IM,   116. 


,  12.1. 
liO,   21)1. 


Co.,  324. 

,  102. 

DO. 

CO. 

;mi. 

1. 

'ar    Co..   2.S0, 

I. 

2,   2.^t 
y.U,  It.^i,  14(;, 

:71.   272.   275. 


125. 


123. 


4. 
0. 

272. 
till  Bny,  1G2, 


328. 


'o.,    137.    14S, 

t. 
t. 
.  Co.,  133,  137, 


TABLE   OP  CASES  CITICD. 

The  References  are  to  Sections. 


Boson  V.  Sanford,  84. 

Boston  &c.  U.  Co.  v.    Chipmau,  263. 

Bobton  &c.  H.  Co.  v.  SUuuly,  212 

Boston   ice.   H.   Co.  v.  Proctor,  242 

Bostwifk  V.  Chauiplon,    103. 

B(jstwick  V.  It.   Co.,  150,   183,  205 

BohWfll  V.  Laird,  301. 

Boswoll   V.  U.   Co.,  130,  248. 

Bosworth  V.  Swiiiiscy,   341. 

Boucliton  v.V.  S..  53. 

BoiirK  V.  Lopi'/,,  H. 

Boiir^o  V.  WlilH'.   ,329. 

Bowcn  V.  H.  Co.,  2.31,  .340. 

Bowfii  V.  Tel.  Co.,  317,  349. 

Bower  V.  I'eate,  301. 

Bower  V.  K.  Co.,  200. 

Bowers  v.  ICvaiis,  8. 

Bowman  v.  Hilton,  84. 

Bowman  v.  Teall.   Id,   HH,  84. 

Bowman  v.  Wood,  ,'i2.  ,58. 

Bo.vce  V.  Anderson,  2.31. 

Bo.vc'e  V.  Cal.   Stage  Co..  340. 

liovce  i'.  The   Kmpress,   12. 

Boj-ee  V.  Weleh,  IfiO. 

Boyd  V.  Melghan,   344. 

Boylan  v.  It.   Co.,  1 17. 

lieynlon  v.  I'ayrow,  rA,  ,'>2,  62. 

Brackelt   v.  I.iilike.  .".(H).  ,301. 

BiaiUett  V.  .McNiilr,    34."). 

Briidlnirn  v.  H.  Co.,  347. 

Bradford  v.  Marburv.  211. 

Bradley  v.  Itaylls.   327. 

Bradley  r.<'uniiln>;liani,  20. 

Bradley  v.  I'arks,  57. 

Bradley  v.  Spofford,   15. 

Bradshaw  v.  U.  Co.,  244. 

Bradslreet  p.  Ileran,  170. 

Bradwoll  v.  U.  Co.,  341. 

Brand  v.  I>ale.  112. 

Brand  v.  U.   Co.,  208. 

Brandon  v.  Cnlf  City  Mfg.  Co.,  14. 

Brandon  v.  Ilnntsville  Bank,  15. 

Brandon  r.  Scott.  2.S. 

I{rantford  CItv,  The,  1.37,  166. 
Brnshaer  v.  U.   Co.,  308. 

Brass  v.  U.   Co..  00. 

Braslin  v.  U.   Co..   206. 

Brass  v.  Worth.  02. 

Brassell  v.  U.  Co..  2.34. 

Brancr  v.  The  Almoner,  172,  3.38. 

Brecn  V.  n.   Co.   241. 

Breeso  v.  Tel.   Co..  317,  319,  349. 

Brehl  v.  K.   Co.,   137. 

Bn'hni  v.  R.  Co.,  233,  340. 

Brohme  v.  Adams  Ex.  Co.,  137,  142. 

140. 
Bremner  v.  Wllllnma,   232. 
Brennnn  v.  H.   Co.,   269. 
Bretherton  v.  Wood,  217,  219. 
Bretz  V.  DIehl,  8. 
Brewer  v.  U.  Co.,  225. 
Brewster  v.  Hartley,  51,  52. 
Brewster  l>. Warner,   15. 
Brick  V.  Freehold   Co.,   53,   55. 
Bricker  v.  R.  Co..  225. 
Bridges  *.  Hawkesworth,  15. 
Bridges  v.  Lanhnm,  344. 
Bridges  v.  R.  Co.,  254. 
Brien  V.  Bennett,  227. 
Bries  v.  Cook,  42. 

40 


102.    21,-),  241, 


gr  ggs  V.  Dearborn, 
Briggs  V.  n.    (■„.,  •2n 

242,  308,  34.-,. 
Brlggs  V.  Taylor,  11 
Briggs  V.  Vanderbilt,  103 
Br  giioll  V.  n.   Vo.,  340. 
Briud  V.  Dale,  S3 
Brlngloe  V.  Morrlce,   ''1 
Brintnall  v.  U.  Co.,  104 

Bristol,   The,   1(12. 
Britannia,    The,    100 

«mI!1'  V"'",'"'''"  ^^-  V-  Mnr8hall.51, 

Brut  on  V.  llarvoy,    70 
Britton  V.  U.    Co.,    .'{(V 
Broa.lwell  v.  Ituller,  106,  170. 
Uroailwood  i'.  Cranara,   73 
Brock  V.  <!nle,    272. 
Brockway  v.  Malonev,    211. 
Brokaw  v.  IJ.  Co.,  i;<')7. 
BroinienburL;  ti.  c'harninn,  33 
Brooke  V.  IMckwIck,     133,     1.36,     MS, 

Brooke  v.  It.  Co.,  11,5,  241,  201 

Brooks  V.  Am.  Kx.  Co.,  18,5 

Bronsscau  v.  The   lladsou,    122 

Bronty  v.  oO*!  Staves,  100. 

Brown,   e.xparte,   205. 

Brown  v.  Adams,   158. 

Brown  v.  Bemcnt,    51. 

Brown  v.  Blllington,   8. 

Brown  V.  Brown,   20,5. 

Brown  v.  ('Icgg,   85. 

Brown  v.  Cook,  22,  29. 

Brown  v.  Ciniard  S.   S.  Co.,  171 

Brown  v.  Denison,  40. 

Brown  v.  Kx.  Co.,  137,  2,32,  337,  338. 

Brown  v.  IlMrris.   2.->0. 

Brown  v.  Hilih(o<'k.  12,  14,  417. 

Brown  i'.  Iloil^rson,  211. 

Brown  v.  Jolmson,    332. 

Brown  V.  Molt,    103. 

Brown  v.  I'ruveauce,  297. 

Brown  V.  It.    Co.,    ,s(j,    i;(7,    142     143 

15,S,  22.3,  225.  2;i0,  2.31,  236,  240,  255. 

258,  205,  200,  270.  208,  340,  347. 
Brown  v.  Ittinals,  (;o. 
Brown  v.  Steamship  Co.,  142. 
Brown  v.  Td.   Co.,  317. 
Brown  v.  Warren,   51. 
Brown  v.  Waterman,  42. 
Brown  V.  Werner,    .301. 
Browne  v.  K.  Co.,  200. 
r.rownell  v.  Hawkins,   51,    68. 
Browning  v.  It.   Co.,    158. 
Browning  v.  The  St.   Patrick,  IW. 
Bruce  V.  Ciarden,   ,52. 
Briiley  v.  Rose,   70. 
Brush  v.  R.  Co.,   137. 
Bruty  V.  R.    Co.,   272. 
Bryce  v.  Brook,  27. 
Bryan  v.  Baldwin,  02,  63,  64. 
Bryan  v.  R.  Co.,  232,  248. 
Bryant  v.  Com.  Ins.  Co.,  214. 
Bryant  v.  Crosbv,   8. 
Bryant  v.  R.   tlo.,   1.35,   162. 
Bryant  v.  Rich,  297,  208. 
Bryaut  v.  Tel,  Co.,  317,  320. 

609 


lr'4M 


TABLE   OF  CASES  CITED. 


The  References  are  to  Sections. 


#j 


,< 

O 

c: 

CO 


■♦Si. 

r- 

3.r 


I  I- 


Bryant  v,  Wordwell,  17. 
Br.vHon  v.  UnyniT,  01,  02,  63. 
BuL-baiiuii  V.  liitcrnntlonnl  Bk.,  C3. 
ItiR'haiiim  V.  Sinitli,    21. 
BucliiT  V.  K.   Co.,  ;{12. 
Buck  V.  liiKiT.^toll,    Tilt. 
BuckliiKlmin  v.  Klslior,  47,  48. 
Bucklaiid  v.  Adams  Es.  Co.,  84,  123, 

137,  14(!. 
BiU'klcv  V.  Aiiilrows,  44. 
BvK-klcy  V.  K.    <'i).,    2(12. 
Buckinan  v.  I-i'vl,    113. 
Buddi'iiliiir);  v.  B(>iiniT,  80. 
Bu<'l  V.  H.  <'<>■.  •"■»»<• 
BiU'iu'iiiaii  V.  K.   Co.,  2.34. 
BuesoliliDJ  V.  St.   I.oiiis  (ins  Co.,  341. 
Buffalo    &c.    K.    Co.  V.  O'llara,    131), 

24,s. 
Buff.'tt  V.  11.  Co.,  227,  293. 
BulTuin  r.  Morry.   8. 
Biilki'lcy  V.  W.frh,    «!1. 
Bldklcy  V.  NauiukcaK  Cotton  Co..  122, 

10(!. 
Bull  v-  Hoiiu'lnss,  ,344. 
Btilljinl   V.  niilliiKs.    r>7. 
Biinllct   I'.  Murniy,  l.^,  20. 
Bur;r('ss  v.  Cl(>iiu'iits,   73,   71>.    SO. 
niirt-'lii  V.  U.  *'«..  .""«. 
Buru'Miidia,   Th".   .-iU. 
Burke  v.  B.   <"o.,  2  to. 
Burke  v.  Savage,    1.5. 
Burk«>  V.  Trcvct.    44. 
Burlcy  V.  Cladstono,  215. 
Burlin);ton    &c.    II.    Co.  v.  Fuel    Co., 

02. 
BurlliiKton    &c.    K.    Co.  v.  Bosp,   200. 
Burniii.s|(>r  v.  IX.  Co..  .3(11. 
Buriicll  r.  II.    Co.,   2S0,   2S7,   201. 
Bnriiott  V.  Lviicli,  .3.';(i. 
Burnham  v.  I{.  Co..  11.".  240.  244.  208. 
Burns  v.  U.  Co.  230.  2;n,  2.30.  .300. 
Burroughs  v.  K.    Co.,    101,    107,    100, 
115,   141. 

Burrows  v.  Bangs,    ,'iS. 

Burrows  v.  K.   Co..   .3(N1,  308. 
ISuri'ows  V.  Trlcher.    70.   77,    SO. 

Burton  v.  Baird,   211.   301. 

Burton   V.  New  Jersey  Kerry  Co.,  2.")1. 

Burtiui  tf.  Wilkinson.   131. 

Biirwidl  V.  li.   Co.,    KiO. 

Burwell   V.  Stern,    .332. 

Bussey  t>.  .Miss.    Valley    &c.    Co.,    8."). 

Bus.sey   V.  It.    Co..    KH),    101,    102. 

Bush  V.  .I(dinson,  341. 

Bush  V.  .Miller.  22.  40. 

Butler  V.  r.!isiMtr.    81. 

Butler  V.  Hcarne,    1  t.3,    154. 

Butler  V.  K.    Co..    27.S. 

Butler  V.  Walker.  21. 

Butler  V.  Woiilciitt.  21.". 

Butner  r.  Tel.    Cn..    .3.M. 

Butt  V.  n.  Co..  332. 

Buttorlleld  v.  Forrester,  .341. 

Buttertleld  v.  Lalhrop.  8. 

Buttei^vorth  r.  Kennedy.  .TO. 

Button  V.  It.  Co.,  340,  .311. 

Buxton  V.  H.   Co.,  2!tl,  203. 

Buzzell  V.  Laeonia   Man.  Co.,  341. 

Byrne  v.  R.  Co.,  200. 

610 


Byrne  v.  Wilson,  313. 

c. 


Cnbnnlsa  v.  Ponder,  8. 

Cadwallader  v.  K.    Co.,    272. 

Cady  V.  .Menowell.    72. 

Cady  t.  Speneer,    77. 

Cahill  V.  It.    Co.,    272,    275.   2V8. 

Calm  I'.  U.    Co.,    201. 

CailllT  r.  Dan  vers,  47,  125, 

(Caldwell  V.  Hall,    8. 

(!aldw(  II   i;.  Murphy,   .347, 

Caldwell  V.  N.    J.    Steam.    Co.,    2.32, 

•s:r<.  310,  318. 
Cal.ilcinla,    The,    100. 
CalciT  V.  Danvers,  S3. 
Calhoun  V.  Thonii(soT\,  17. 
CiilHoi-nia,   The,   170,   182. 
Callahan  v.  Bean.  .",11. 
Callaiinu  v.  It.   «'o.,   :!(Jl. 
Caiye's  Case,   7(!,   8(t. 
Camden  &u.   Ferry  Co.  v.  Monn},'liiin. 

.•107. 
Camden    &c.    U.    Co.  V.  Bnldauf,    1.",:!, 

130.   271,   27S. 
Ctiniden     iVe.     Trau.s.     Co.  v.  Beknap, 

.si,   130,  2S2. 
Camden     \e.     U,     Co.  V.  Burke,     1(;2. 

2.;i,  270,  271. 
Camden  iVe.  11.  Co.  v-    Forsyth,  101, 

107,   100. 
Camden    &c.    U.    Co.  v.  Iloosey,   2.")1, 

3(J(I. 
Camden    &c.    R.    Co.  v.  Pasch,    24V, 

21^. 
Cameron  v.  Uleh,   .337,   .338. 
Camp  V.  Barney,  20."i. 
<"ami)  v.  Churcli   Wardens,  .301. 
Camp  V.  Ilarll'drd    Sicamh.    (.'o.,    137. 
Camp  V.  Tel.    Co..    .317,    310. 
Campliell   v.  Morse,    12."i. 
Campbell  v.  Tiirker,    Ti'2. 
Campbell  V.  Perkins.   203. 
CamplK-n  V.  Pull.    Pal.   Car  Co.,  .324, 

32S. 
Camphell  v.  Somervlllp,   30^ 
('.•impion  V.  It.    Co.,    04. 
Canadian    Paeitlc    U.    Co.  v.  Johusou, 


2*i(i. 
Camidian, 
Camlef  V. 

202. 
Camlee  v 
C;indllT  V.  It.  Co 
('.•inlleld  V.  Mlioi 
Canlleld   V.  It.  Co 


The,  2.'iO,   .340,  .347. 

K.   Co.,   100,   103,  288,  291, 


Tel,   Co. 


310,  349. 
200. 

^e.    Assn., 
102,  338. 


02,  63. 


Cannin;;  i'.  Wllllamstowii,   347, 

Cannon  v.  Tel.    Co.,    340. 

Cannon   iVe.    Manf«.   Co.  v.  Bank,  33. 

CaiM'iee  V.  S|ianton,    10. 

CantliuK  V.    U.  Co.,  1.37,  143,  2.84. 

Cantu  V.  Beniu'tt.   102. 

Capehart  v.  Furnlnuu    Co.,   211. 

Capehart  r.  It.  Co.,  ir>,S. 

Car;io  V.  (inimaraes,  170. 

Cardin   v.  .lones,   58. 

CarUot  V.  Uaruuy,    295. 


{I    ': 


272. 

75,  2Y8. 

25. 

7. 

lu.    Co.,    232, 

17. 
12. 

V-  Mi>no,i;Iiim. 
Itnlil.iiif,  1.;:;, 

;o.  V.  HcUiiiip, 
.  IJufkp,  If,'.',' 
Forsyth,  101, 
Iloosey,   251, 

).  Pnsoh,    24", 

lis,  .W1. 

mil.    (.'o.,    137. 

;iH). 


y.\. 

t;ar  Co.,  .•524, 

301. 

o.  V.  JohusoQ, 

0.  347. 
103,  2.S8,  291, 

.  340. 

Vssii.,  02,  63. 

.■!3S. 

Ill,    347. 

!). 

i.  V.  IJnuk,  M. 

;  143,  284. 

Co.,   211. 

I. 

0. 


TABLE   or   CASES' CITED, 

The  References  are  to  Sections. 


Ki. 
217, 


Oarcy  v.  Atkins,  102,  .338. 

Carey  v.  K.  Co.,   100. 

Cnrlu  V.  Hcni'cc,   22. 

Cnrllri  r.  K.  Co.,  341. 

Onrlottu,   The,   100. 

Ciinni'ii  V.  SloiibcnvUlc,  301. 

Carpfiitor  v.  liriuicli,   37,   3H,   41, 

("arpt'iitiT  V.  .MlniiiK  Cii.,  2'Xi. 

CarpfiitiT  V.  U.    Co.,    234,    241,    302, 
325,   .•i28. 

Cnrpi'iitiT  V.  Taylor,  72,  327. 

Carpup  V.  K.  Co.,  .140, 

Carr  v.  It.   Co.,   hO,    l.'iO. 

(^arr  i>.  Tin?  MIclilKau,   170. 

Curi'ico  V.  It.  Co.,  304. 

(JurriiT  V.  liori'Miicc,   42. 

tIaiiiiiKtou  V.  Kiikliii,   ,'13. 

Carroll  v.  Mix,  23. 

(JaiToll  V.  .Mullaniiliy    Sav.    15k., 

Carroll  v.  It.    Co.,   231,   232,   230, 
312. 

(Sanson  v.  Harris,    137,    160,    170. 
Cai'.son  V.  l'rnt»!r,   15. 

(.'artcr  v.  Itcriln   Mills,   301. 
Carter  v.  llolibs,    74. 
Carter  v.  HoukIi,   100. 
('nrter  v.  Peek,   103,   2i)l.   202. 
Carter  v.  It.  Co.,  257,  207,  341. 
CartwriKht  v.  Wiliiierdiiifc',  51. 
Cartwrltilit  v.  U.   Co.,  254. 
Cary  v.  It.    Co.,    202.      . 
Caseo,   The,    UM5. 
(;nse  V.  Haldwln,   10.3. 
Case  V.  I'oKK,  20. 
(^asey  v.  Cavaroe,  51. 
Cashlll  V.  WrlKht,  70,  80. 
Cass  V.  Hlgeiiliotam.   01. 
t'ass  V.  It.   Co..    12,   40,  3;!2. 
Cassldy  V.  AiiKell,  341. 
Ca8.silay  v.  Vouiif,',   170,  205. 
Caswell  V.  It.   ('».,   2.34. 
Catoii  V.  Ilniiiiiev,  ,S5. 
CavaiiauKli  v.  DJiisiuore,  207. 
Cayle's  Case,   ,327. 
Cens  V.  Itraiiilev,  51. 
Ceell  V.  I'rench,    4.5. 
Ceiilhore  i\  Ity(l(>r,    77. 
Central    Line  v.  Lowe.    121 
Cent.    Pass.   Co.  v.  Swain, 
It.  Co.  V.  Ariiistronu', 
It.  Co.  V.  Aviiiit,  lOl. 
Co.  V.  lirelsfonl.  SO. 
<"o.  V.  Prynnt,  1.37.  140,    187. 
Co.  V.  CoiiitiM,  KMi,  201. 
«'o.  V.  Davidson,  304. 
Co.  V.  iMvisht      .Man.      Co., 


108. 
!07. 
230. 


It. 
It. 
It. 


Cent. 

Cent. 

Cent 

Cent, 

Cent 

Cent.  It 

Cent.  It. 

140. 
Cent.  It. 
Cent.  K. 
Cent.  U. 
Cent.  It. 

330. 

Cent.  It.  Co.  V  Mason,  341. 
Cent.  It.  Co.  r.  Nelson.  200. 
Cent.  It.  Co.  V.  Perry    227 
Cent.  It.  Co.  V.  UoKer's.  111. 
Cent.  R.  Co.  v.  Smith.  .347. 
Cent.  .Vc.  It.  Co.  v.  Soper,  1,58. 
Cent,   ft.  Co,  V.  Van  Uoru,  253, 


Co.  V.  Frankenherg 
Co.  V.  (irant.  301. 
Co.  V.  Creen.  205. 
Co.  v.  Lanipley, 


101. 


85,      308, 


254. 


334. 
351. 


20. 


47. 


(VmI'    1i',T  ^''];  ?•  "•    Co.,  107.  314, 
323  "    ^^''-    ^■"-  ^-  ^nidbury. 

Cent.    Union  Tel.   Co.  v.  Fallcy,   323. 
(  halTee  v.  It.  Co.,  2,34 
<3uilU  V.  It.   (',!..   i;01. 
Cliiinilierliilii  V.  <.:iiandler.   298 

<  liiiiiilM.i-l;ihi  V.  Ciilil..  :i7    41     4'> 

lanilj.Tlulii  V.  M;islersoii,  70.  80 

<  liamlMM'laln  v.  Siiiilh    ,s 
Cliiuiilierlni,,    p.   A\,.st.     Trans.     Co., 

Cliaiiilici-s  V.  Crawford,   43. 

(  liiinililis  |).  l{.    (■„,_   1,0  ' 

<'liiiMiiiloii  (..  lidsiwlcU.    103    203 

<  liaiiillcr   V.  P.elden,    20    21,5 
Chiniey   V.  It,   Co.,   241.' 
Cliapnian   y.  U.   Co.,   ;;),-, 
•'luipniau   0.  Tel.  Co.,  ;;,-,(), 
Clsiipnian  ii.  3'urner,   09 
<'liai'les  V.  Coker,   ,'.9. 
Charles  v.  Laslier,    ,S4 

Clmrtered    .\i,.,..     nit.    ^j.  Nethorland 
Meani.    .Nav,    Co.,    l(l(i. 

<  hascn,   33je,   lot;. 
Chase  v.  .Malierrv,  .33. 

•  'hase  V.  It.   Co..'  201. 
Cliiise  V.  Washliiini,  8    47 
(3iase,   The,    i:il. 
Chatlaliooche   Itk  v.  . Schley 
Cheek  V.  It.   Co.,   2,S,->. 

•  3ieeshoroii^'li  v.  Tavlor,   70 
Cheney   V.  It.   Co.,  211,  2(!S 
(Mionowlth  V.  lOckinson,   11 
(Miesapeaku  iVe.   K.   Co.   ti.WoiYs    205 
Chesapeake  &i\  Tel.  Co.  v.  Halt    &c'' 

Tel,  Co..  323. 
Chesley  v.  .St.  Clair,  1,5, 
<'l>''vali<;r.  V.  .Straham,     83,     84,     122. 

Child' v.  liiiKK,  02,  04. 
'Miiles  V.  Carvison,  S. 
Chilton  V.  U.   Co.,  2.59. 
Chlsiil    V.  Wooils,    17, 
ChoMette  v.  It.   Co.,  201. 
Chouteau  v.  Allen,  02. 
Chonteaii  V.  I.eacli.  ,s;i,  12,8.   im    IfM! 
Christian  r.  .Miller,    .314 
Christian  v.  It.  Co.,   1,-,1». 
Christenson  v.  Aiiierieau  Ex.  Co.    84 
109,   l,i7,   liHi.  '       ' 

Cliristie  V,  Ori),'KS,   231,  2.32,  310 
Chronicle.    3'lie,   20,5. 
Chryst.il  Palace,  33ie,  289. 
Chnbh  V.  Itenaiid,  1.3.5. 
Chiir<-h  -i*.  U.   Co.,  241. 
(Miica^-o  V.  Major,    .341. 
ChicaKo  V.  IJolihlns.  .301. 
(Miicufjo  Artesian  Well  Co.  t».  Corey, 
01. 

Chicago  &c.  R.  Co.  v.  Abels,  137,  142, 

15,S,  .335,  337,  338, 
Chicago  &c.  R,  Co.  v.  Ackley,  8,8. 
Cliic.  &e.  R.  Co.  V.  Addiiioat,  2.S7. 
(Miicago    &c.    R,    (^o.  V.  Ilannernian, 

Chicago   &c.   H.   Co.  v.  Hills,  268. 

611 


r 


^i 


CO 

>7s 


CO 


TABLE   OP   CASKS   CITED. 


The  References  are  to  Sections. 


Chicago    &c.     U.     Co.  V.  HoKiT,    257, 
liHO.  202. 

R.   Co.  V.  Boyco,   272,   2Wi, 

201. 


iit: 


Chic. 
287. 
(JhlciiKo  &(^   U.  Co.   v.  Iliirslcy, 
Chl(«K<»   Ai^^    U.    Co.  r.  Cnrnpll, 


^jIMchko    »V(!.  II.    I  o.   r.  <  Mi-npll, 

ChlcHfe'o  \c.  U.  Co.  V.  ChlHliiiliu 

ChiciiKo  \c.  It.   Co.    V.  Chinch,    : 

Chicairo  Arc.  H.     Cii.   «    Cliivtmi 


:2l, 

2(iM. 

,  nil, 

Cla.vlon,    285. 


It. 
K. 
It. 

It. 
11. 

U. 
It. 
It. 


V.  Collin.-*,  272. 

i;.  CcdiUlli  ,   27M. 

V.  I'l'Wi'y,  .'Kill. 

V.  '   roHs,   ;!(l'.i. 

.   V.  I  'iikson,  2lt7. 

V.  Kriiksnii,  8'.». 

Co.  V.  Kiihcy,     270, 

Co.  t>.  Kalrclough, 


Co.  V.  l'"U'.\mnii,  2118. 

Co.  V.  <ii'oiK<'.  ;t"-t. 

Co.   V.  (ircuory,  :14I. 
Co.  V.  <;iiinii,     244, 

Co.  V.  iiiiif.  l.^o. 

Co.   V.  riiiriiioii,    8(i, 

Co.  V-  ITaziird,  ;{41. 
Co.   V.  lli'iTlnii,',  ."KS. 
Co.  V.  lloMcy 


Co. 


It. 
U.  Co.  V. 


ciilcago  An 

288. 
Chicago  iVc.   It.   Co. 
Chicago  \-c.    It.   Co. 
Chicago  iVc.  It.  Co 
Chicago  \c.    H.   Co 
Chicago  iVc.    K.   C( 
Clilcngo  iVc.  It.  Co 
C'hicago    \c.     It. 

271,  288,  2!ll. 
Chicago    &c.      It. 

287. 

llhlcago  iS;c.   It.  Co.   V.  I'd  ton,  ;i().S. 
Chicago  \c.  It.  Co.  V.  I'llliiuirc,  2:t4. 
Chicago    iVc.    It.     Co.  V.  Klagg,     257 

2<11.  2(;ti,  ;{47. 
(.'hh'ago  iV:i'.    It 
Chicago  iVc 
Chicago  iVc 
Chh'ago   A;c. 

21)7,  .'(47. 
Chicago  &c. 
(.'hlciigo  Ac. 

142. 
Chicago  iVc 
Clilcogo  Ac 
Chicago  \c, 
Chicago     iVc 

\:,H,  212. 
Chicago  &(■. 

;t(»4. 
Chicago  &c. 
Chicago  Ac. 
(;hlcago  Ac. 
Chicago  &c. 
(Uilcago  i\:c. 
Chlcau'o  iV<'. 
Chicago  A;c. 

KHI,  i:t7. 
Chicago  &C.  Il 

Chicago  &o.   I 
Chicago     \c. 

2.^.7.  201,  2!>7 
Chicago  &c.    It 
Chicago  iVc. 
I'lilcago  \-c. 
Chicago  &c. 

347. 
Clih'ago  &c. 
(Chicago  iVi'.  1 

!»2.  KKi,  2.''i5. 
Chicago  &c.  II.  Co. 
ChlcaKo  &c.  H.  Co. 

208.  .'!12. 
Chicago  i^-c. 
Chicago  &c. 

201. 
Chicago  &c. 

308. 
Chicago  &(-.  n.  Co.   . 
Chicago  &c.  U.  Co.  V.  SInitns.  Ip* 
Chicago  &e.  It.  Co.  r.  Sykes,  312. 


II.  Co.  V. 
It.  Co.  V 
Co.  V. 
('o.  t». 
Co.  V 
Co. 
Co 


U. 
It. 
It. 
It. 
It. 


I).    V 


I.,.,,, ...  ;!<i4. 

V.  Ka'l/.cnliach, 

Laiidaucr,  231, 

Manning,  125. 
.  Marcus.   275. 
,  McCool,   202. 
.McKcan,  317. 
„.  MliMiic.  225, 
V.  .Minnesota,  8S. 
.Montforl.   mi. 


Co. 


V.  Moss,  137.  102, 
S<]. 


.   Co.  V.  Owen, 
n.     Co.  V.  I'arks, 


IT. 


It. 

It.  Co 
It.   Co. 


Co.  V.  I'cncock,  2.57. 
Co.   V.  I'cnn.   200. 
V.  rillslniry,  302. 
I'ondroni,  3ii7, 


V. 


.  TTatt,  202. 


H.   Co.  V.  I'raii,  -"-. 
It.   Co.   r.  People,  88,  SO, 

V.  U.   Co.,  80. 

V.  Uniidolph,  200, 

n.   Co.  V.  Roberts.  2.57. 
U.     Co.  t».  Sawyer,     122, 

Co.  V.  Scntps,    2.S4, 


R 


Scott,  202. 
SInims.  1.58. 


Chicago  &c.  II.  Co.  V.  Thompson,  8i. 

133. 
Chicago  iVc.  II.  Co.  V.  Tlirapp,  205. 
Chli'ago   iVc.   It.   Co,  p. 'Iroiici,  ;;|i), 
Chicago  iVc.  It.  Co.   V.  Whipple,  2'.wi 
Clilcago  »Vc.   II,   < 'o.  V.  Williiini,'',  '.'S.i, 

255,   205,  348. 
Chicago   iVc.    It.    Co.   V.  WIlHOii,  234.- 
Clnclnnall   v.  Stone,  .'liil. 
Cincinnati  \i'.   .Mail  Co.   v.  Boal,  m. 
I'inclnnati  \c.   it.   Co.   i).  Carper,  225, 

220. 
ClnclnMatl  iVc.   It.  Co.   V.  Cole,  207. 
Cincinnati  &c.   It.   Co.   V.  (,'ooper,  2l>7, 

2t',!>. 
Cinclninitl   \c.    It.   Co.  t>.  Haton,   .".Hi, 

347. 
Clnclnnall  Ac.   It.  Co.   V.  Karreil,  300. 
I'lncinnall  \c.  It.   Co.   r.  Marcns,  1.13, 

270.  271. 
Cincinnati   \f.   R.    Co,   t>.  McCool,  40, 

47. 
Cincinnati  iVc.     R.     Co.   v.  .Mc.Mnlleii, 

311. 
Ciniinnatl  *c.   It.  Co.    V.  ToulluH,  101, 

i:;7,   118,  247. 
Cincinnati    ic.     R.     Co.   v.  Sklllninn, 

201. 
Cincinnati  &(;.  R.  Co.   v.  Spnitt.  lo,-,, 
Cincinnati      &c.    R.     Co.  v.  Wiilroth, 

CItT/.ens'    Hank  v.  I>o\vs,   70. 
Clll/.ens'    Itank   v.  Nanluclu't    Stonni- 

lioat  Co.,  .S3,  .84,  01.  05,  OS. 
Citizens'      Ins.    Co.  V.  Kountz      Mmp, 

Citizens'   Nat.    Hank  t>.  Hooiior.   iO. 
City   Hank  of  Haclno  V.  Habcock,  (..', 

City  I'Mre  Ins.  <'o.   r.  <>li"stcad.  ..1. 

CIt'v  of  Alexaiuler,  The,  ICli. 

City  of  Anderson    1'.  "".''^'W'..'..    •mi 

City  of  I-'ort  Wayne  v.  I>e  %\  itt.  ..11. 

City   of   Lincoln  v    Walker.   341 

City  of  Norwich,   The.   137, 

City  of  St.     Louis  V-  H«'H 

c"o..   323.  ,     „,,, 

ritv  of  Tltlln  V.  MoCormnck,  301 
City  of  Washington.  The,  12. 
CiaOlii  V.  Meyer,  40.  47. 
Clafllii  V.  R.   Co.  V.  20(,, 
Clapp  V.  Nelson,  2'2. 
Cliipi)  V.  R-  <'o..  -ill- 
Clare  r.  Tel.  <"o.,  3..1, 
Clark  V.  Harnwell,   84, 

337.  .'f38. 
Chirl;  V.  Houvaln.  04. 
Clark  V-  Hnrns.  '280. 
("lark  t',  Carllon.    1.). 

Clark  V.  I'll '■'i>''>"'^\-.  ■♦■;•„„ 
Clark  V.  Kaxton.   84,    !.«». 

V.  I'ry.  .'iol. 

t).  Iselin.  70, 

V.  Maloncy.   15, 

V.  It.    Co.,    137,    21.5 
301,  300,  338, 
Clark  V.  S|)arbank.  .(44. 
Clarke  r.  (!n\y.    130,   142. 
Clarko  V.  Needles,  112. 
Clarke  *.  i'oozer,  15. 


Vi'J.  100. 
Telephono 


123,    100,    1S2, 


Clark 
Clark 
Clark 
Clark 


256,   262, 


612 


11: 


lompson,  ftl, 

rii|i|),  :;ori. 
niiiiT,  ,",lo. 
iiipiiii'.  j'.tti 
illiiiiiih,  ;:.!;{, 

llHon,  Zi4. 

V.  Ill  111  I,  iiri. 

(  iiriii'i',  U;I5, 

I'olc,  Li'.lT. 
('(lopcr,  :;()7, 

,  Kiiliiii.   ''Ilii, 

FiiiTcii,  ;t()0. 

Mil  reus,  l.'!,'!, 

McCoiil,  40, 

V.  Mc.MmIUmi, 

I'oiilluH,  lOl, 

V.  Sklllitinn, 

Si>riitl.  n>;i, 
,  v-  Wiiliuth, 

70. 
icki't    Stcnm- 

SIR. 
ountz     I.liio, 

Toniicr.  70. 
ISiibioi'U,  (;2, 

iiis"t<'ii«l,  ."ll. 
Kit  I. 

•v.'V,  :!11. 
>o  Witt.  :ill. 
i.T,  :!ti. 
:t7,  ^|•>i.  lr.»!. 

U    Tolt'lihonn 

iincU,  noi 


12;!,   ICi".  i***, 


mm 


0. 


15,    256,   262, 


TABLE   OP  OASES  CITED. 

The  References  »re  to  Sections. 


Clnrke  v.  H.  Co.,  so,  12().  130. 
("liirltHoii  V.  Kill'    iVc.    DlHpatcU    Co., 

iu;t. 
Clary  v.  Wllli-y,    Ki,   72. 

ClllHNCIl    l>.    h«'l)|)Ol(l,    80. 

Cliiy  V.  Tel.   Co.,  .'Mil. 
Cliiy  V.  Ullluii,    i:t<!,    142. 
CliiyiiiKil   V.  M<'AI1IhI»t,    84. 
(;iaytou  V.  Ilmii.   1  l.'i. 
Clt'K'liorii  V.  .MIniicsiitii  Trust  Co.,  CO. 
Clf>.'li(ini  V.  11.   Co.,  ;M8. 
""        <'o.,  ;t20. 
12. 
.    J.    Stciilil.    Co.,    225, 


U.     Co.  V.  ISiirtraiii, 

H.     Co.  V.  Crawford, 

It.  Co.  V.  Currnii,  l.'!7, 


U. 

II. 
I( 


Co.  V.  Millisoii,  ;M2. 
Co.  V.  I'crklii.s,  l.-)ti. 
<'o.  V.  Torry,    yu4. 


Cllciiii'iit  V.  Tt'l 
Clt'lllrllt,  Tbc, 
CIcvchiiKl  V.  N, 

227. 
Clcvi'laml     &c. 

241,    2t)0. 
Cli'vclaud     &c'. 

."{41. 
(Mcvclaiid  &c. 

247. 
C!cv,.i;ii„i  Arc 

('li'Vcland  &c 

Cleveland    {in 

Cloud   V.  U.    Co.,   244. 

Cloiird  V.  U.  Co.,   11."). 

(Uiissiiiiiii   V.  U.   Co.,   228,  234,  252. 

Chile  V.  \VI).'«lns.  7il,   77. 

Clyde  V.  Ilulihard,    103. 

(^lyiiier  v.  U.    Co.,     203. 

(loal  Co.  V.  Ileliiian,  328. 

Colli)  V.  Ahhot,    103. 

Colli)  V.  n.   Co.,   101. 

Colili  V.  Wnlla<'e,  22. 

Coliliiin  V.  Dowiie,    110. 

('olideii  V.  Itoultoii.    1,54. 

('(icliraii   V.  Dliisiiiore,   339. 

v'oeliraii  V.  N.   Shore  &c.  Ferry  Co.. 

2.33,   234.  ' 

CoeUle  V.  I{.   Co.,  254. 
CoddliiKtoii  V.  Uav,  54. 
Cody  V.  K.   <;o.,  243. 
Cofllii  V.  ClilcaKO   Co,,  02. 
Colllii  V.  K.    Co.,    1.50. 
CoKer  V.  I'aeket  Co.,  205. 
CoKir.s  V.  H(>niard.  1,  .5,  0,  33,  38.  50, 

83.    110,    120.    120.   2.32. 
Cohen  v.  Fro.st,   112. 
Co'k'ii  v-  Iluiiie,   84. 
Cohen   v.  H.   Co.,   I(i2,  207,  21)8. 
Cohen  v-  South.  Kx.  CIo.,  100. 
(!oit  IK  Iliiinbert,   .57. 
Cole  V.  Iianlels,   02. 
Cole  V.  (Joodwiu,    84,    139,    142,    270, 

271. 
Cole  V.  Tel.   Co.,  .320. 
Colegrove  v.  K.   Co.,  312,  315. 
C'lenmn  v.  Frazler,    ,3.30. 
<■     i man  v.  Livingston,  332. 
<'",l^»uu  V.  U.  (;o..  241,  257,  297,  298, 

309. 
Coleman  v.  Sholton,  08. 
Collard  v.  R.  Co.,  345. 
CollenUerff,  The,  1,30,  213. 
Col  lender  v.  Dlusniore,  103,  149,  160, 

ollett  V.  R.  Co.,  225. 
Collier  V.  Valentine,  166,  337. 


Collins'  Appeal,  51. 

Collins  V.  Itennett,  10,  332. 

(  «illlnH  t>.  ItiirnH,  22. 

('olIiiiM  V.  lliick,  7<). 

CollliiH  V.  iMwIey.  70. 

Collins  r.  Wdiiilnifl',   25 

Collins  V.  U.    Co.,   HKl.   271    070    070 
270,  ,317.  '         * 

Collls  V.  SeUlen,  230. 

Collniiiii  V.  Collins,    '.'15 

Colon,   '|'ii(.,    Kij. 

Colonel    I.edyiinl,    The,    1,34. 

Colcinilt   V.  Stiill/,  05. 

<'olt   V.  .McMiclieii,    I'Jl. 

Collon  V.  It.    Co.,    148,    102,   100,   838. 

<  olion  i'.  Wise,    8. 
182. 

It.  Co.  t».  .\rniild, 
II.  <'().  t>.  Fiuri'll, 
It.  Co.  V.  Powell, 


220. 
2.54. 
225, 


.33,   a3. 
'IMie,    84. 
Orleans  ti.  Mar- 

V.  New  Kngland 


2R1. 
245. 


Colninlio,   'I'll! 
Coliiinliiis  iVc 

Collilnlms    iV:e 
C<ilntnlnis  \c 

200. 
Colwi'll  V.  K.   <'().,  ;iO' 
Colyiir  V.  Tnylui-,    :;i), 
Coniniiinder-in-C|ilel', 
<Jom.    r.aiik  of  .New 

tin,  .8,  58. 
Corn.  iMluii  Tel.  Co. 

Tel.  Co.,  ;;2:'.. 
Coin.    V.  I'anniin.  211 
<'oni.   V.  .Mitchell,   73. 
Com.   11.  Pierce,  24. 
Com.   V.  Power,   221, 
Com.  V.  K.   Co.,   22."., 
Com.   V.  Sinllli,  205. 
Com.   V.  Welherhee,  72. 
Conip  (I.  Hunk,  70. 
Conipta,  The   llICi,  ,337. 
Coinplon  V.  Shaw.  20. 
Comslnck  tK  Sriiilli,  ,53, 
<"oiiard  V.  Atlantic   Inn.   Co.,  51,  55. 
Conc<ird    tVc.    K.    Co.  v.  Korsalth    02 
Condlct  V.  n.   Co.,   100,   107,   130,   102. 
(  ondon  v.  H.   Co.,  104. 
Con^'ar  v.  U.   Co.,   tm. 
Conger  v.  H.    Co.,    W.    1,30,    290,   300. 
«  oiikey  V.  It.    Co.,    104.    105. 
Connell  V.  Tel.    Co.,   ;i5]. 
Coniiell  V.  Vooiliees.   3.'!0. 
Connor  v.  It.  Co.,  .",08. 
Connor  v.  Wintmi,  ,30.  .33,  ,35. 
Connolly  v.  It.    Co.,   2(i7,    209. 
Connolly  v.  Warren,    272. 
Conrail  v.  Tel.  Co.,    ;!20. 
t'on verse  v.  Norwich  &c.  Trans. 

103.  104,  11(1. 
Converse  v.  It.   Co.,  103,  107. 
Conwiiy    Hank  v.  American    Express 

C"(i.,    14. 
Conwell  V.  Smith,    .33,    42. 
Conyngliam's  Ai>|ioiil.  52.  57,  02,  68. 
Cook  V.  Conrdlne.  84,    125. 
Cook  V.  (Jowan,  213. 
Cook  V.  Holt,    23, 
Cook  V.  Kane,   82. 
Cook  V.  If.  <.'o.,  90. 
Coomlis  V.  U.   Co.,  211. 
Cooper  V.  Berry,  133,  1,37. 
Cooper  V.  Uay,  70. 

613 


Co., 


y 


r' 


I  i 


ii! 


N!i 


.< 

c: 

< 

CO 


r- 

•pi: 

3,r 


T\BLE    OF    CASES   CITED. 


The  References  are  to  Sections. 


Cooppr  V.  Yoiiiiff,   .'{45. 

Copt'land  v.  liraiicr,  24. 

Coploy  V.  K.  «'().,  ;i41. 

Cuiipiii  V-  IJratliwailo,  2."iO. 

Corlit'lt  V.  I'lHli'iuiiiPil,  .")1. 

Corliiii  V.  M\\.    Mills.   .liMt. 

(^orcuraii   v.  U.  Co.,  .■!41. 

("orlicid  V.  Corji'll,   1,"). 

ConiiiiMii  V-  K.  t'l).,  j;;4. 

Corlclyou   V.  Lau.siiii;,  .M,  (Ml,  (lU,  "1. 

Costa   lJU;i.   'riic.    Itli!. 

Cosicllo  V.  I!.  Co.,    i;.';'j. 

CostlKan  V-  Micliat'l  'Iraiis.  Co.,  lti(>. 

I'ostiU.vau  V.  K.  Co.,  i!.">l. 

Colluaii   V.  Kills.   .•!44. 

Colliniii   |),  McHiri'.   1(1. 

Co>i|i  V.  \V:il)asli  \c.   F{.   (^o.,  S4. 

Couiily  Coiiiiiirs.  t>.  I'liriicss,   'M\. 

Ciivili. '1.111    I;.  .New  IhTj;!'!'.   .SJ. 

Covin;:;"!!  v.  \Villa!i.  I.",i;. 

C-waiil   V.  it.   Co..   1.!7.   111'.  1272. 

V.  I'ai'.  Coast  S.  S.  Co.,  92, 
Fi!lls    Man.    Co.    v.     Uok'TS, 


CoWilo!! 

Cowi'ta 

:!»4. 
Cow  I. 
( 

Cox 
Cox 
Cox 
Cox 
Cox 
Cox 


i;«>,   1(12.  ;t.'!0. 


V.  rolntcr.  47. 

I'y   V.  li.MVidsoii,   Ui(5. 

V.  Kaslcy,    l.'i. 

V.  l'"osciii'.    127. 

l>.  M(<  !iii!'c,   ."1. 

V.  O'lUlcv.    4S. 

V.  I'..|.'!s,,ii,   122.  12.T   ItlO,   1<!0. 

V.  Ucv Holds, 
Coxc  V.  Ili'Isli.y. 
Coxnil     V.    It.    Cii.. 

Ci-.'ifior  V-  It.  Cii 
(  riifi s  (•.  liostoii 
C!-aL'iri   V.  It.    Co 

.■!I7. 
CraiLT  V.  K.    Co,. 
CinU'  V.  ChlldiTss.  ,»<.'l 

C!'l!Acr    V.    It,    Cii..    I!  17, 
C';iirii)    V.   Mitclicll,    21 
Cr:i!li'   t'.  It.    Co..   2till. 
Ci-aiili'    v.  \V4mm1.    to. 
Ci'Mwfoi'd   V.  I!.    C.I..    107 
Ci-;iu  lio-d    i>.  Wllllai!is.    : 
Crau-:i.!i    t>.  'I'ld,   Cii,.  .Til. 
Ciayii-.ilt    IV  It.  C,,..  1(17,  I,",!. 
<'nc'd   V    lliiri  mail,  :!ol, 
CirM.d    ".  It     ('..  .   ■-'•'■.    "Oi;,   ;{12. 
('rciislm \vi>  V-  rfai'PP,  \\7>. 
Cress. ill   V.  it,   < '"..  2ri2, 
Cri'w   V.  it,  Cii,,  .'41. 
I'ritiiii   V.  .Mil'-li.'ll.    1 


i:;:!, 

loii, 

L,  2:! I. 

.  .Til. 
..     Sti, 

241, 


12:t,  128.  i;«7. 
.•!4.S. 


2(i2. 
i:?. 


Criss. . 

Croaki'i- 

CripiKci- 

CriH'ki'i- 

Crorkcr 

Cro<'l<(T 

Cl-ofl     |1 

Croft  V. 
Crofts  I 
Croirai!   v 


It,  Co,.  2.Vt.  ."!"«. 
j>.  It.    Co..   2!l^,   2!»'.>, 
i»,  I  'r<i»"I\t'!'.  .'iT, 
i»,  CiilllftT.  17,  21. 
r.  Moii!-i.s.',    70,   f?.'!2. 
V      It     <'o.  2C.1. 

.\iisoii,  :vj.s. 
li.    Co..   21*1 .   2!*2. 
.  WatiTlioii-^i".   2;!2, 
It.   <'o..  2:!1.  2:12. 


1    rou.iii    f.    n.     ,   ■'..     -.,1.     -..••. 

CroiMiiuOlii   |i    It.  <'o  .  2iri. 
Croiiiwi'll   r    Sli'Vi'iis.    72.    ;t27. 
Cr.iiiklto  »v  W.dls.  it:..   114.  11.V 
Crosliv  V    KItili.  SI,    I'M.   1<M!.  20r), 
<, 1...   ^   < < »t II     \t\i\ 


Crostiy  V-  firiiiiK'll.   1'itV 
Cross  t',  llrowii.  .'1.   4il,  41, 
Cross  V.  WUI<ins,  72, 

614 


332. 


Crosslin  V-  It.    Co.,  110. 

Croiicli   V.  It.  <  o, ,  i».->,  !«5,  345. 

Crozicr  V.  It.   Co.,  .■i24. 

Cruiiilinckcr  u. 'i'lick'T,  20. 

Ciiiini)   j;,  .Mitciicil,  2:t. 

Crii!!i|ili'y  V   It.    Co.,    341. 

Cliff  V.  It.   <'o,.  301. 

Clllr   V.  lii'lisiili.    211.". 

Cnllfii   V.  Lord.    Iti,  21. 

Ciilliiiii  V.  Kiiiauiiid,  .''iS, 

Ciiinln'rlaiid    Valley    It.   Co.'s  AppeHl, 

Cuiiilicrlaiid  X'liliey  U.  Co.  f.  Meyers, 

22,'i. 
Cuiiiiiis  V-  Wood,   332. 
CiiiiiiiiiiiKS  V-  Harris.  2ti,  27. 
Ciiiiiiiiiiis   V.  It,    Co,,   I11I. 
CiiiiiMock  V,  Saw,   Inst,,  (i.'i, 
Cii!inin«lia!ii   v.  It.    <'o,,    ."iol. 
Curia  I!  v.  Warren  Clieni,   Wks.,  ,">40. 
Cnrreli  v-  .1  ilinson.    170. 
Curtis  V.  .Mnrpliy,    74. 
Curtis   V.  It.    Co.,    232,    2,30,    2.'3,   202, 

2.Sf..   .340,   317.    3.M1. 
Ciisaek    V.  Itoliinsoii.    211. 
Ciisl-.iiil  n   V.  Hayes.    Til.   ii2. 
Cutler  V.  Monney,  7ti. 
Cutter  I'.  Ilanileii.  21. 
Ciittliii:  r.  Marlor.  r.s. 
Cults  V.  Ilni'uerd,    103.    I07. 
Culls  V-  Tel.    Co.,   31'.t. 
Czecb   V.  Uuu.   Sti'iiin  Nav.  Co.,  102. 


D. 


I)n;:;;ett   iv  Stmw.  123.  lOtl. 

Hahllierf.'  v    It.    Co.,   307. 

itale   V.  I",  Co,.  347, 

Hale   I',  I'.riiiekerlioff,   2.',   20. 

Haly    I'.  It.  Co,,  314. 

imlliis  iV<',    It,   Co.  t».  SliU-btT,  341. 

Hanionl    V-  It,    Co.,   3IIS 

Kana   v.  It,    Co,.    I"--    t^-- 

r      'fortli  V  <irai(t.  3:'.(), 

;-,...iel    V,  'i'ei,    Co.,   34'.t. 

I  aniels  V-  It,    Co,,    .'iOl. 

Haniier    f.  It.   Co..   311,    _ 

Kaiisev   V.  Itle'iirdsoii,    (_. 

Hiiiiville  liank   t',  Waddill.   .M. 

Danville  \e.  It.  Co.   V.  Slewnrt,      31^ 

1>'.\V<'   V.  It,   <  o,,   l(iJ,_ 

innliii;;  V.  It.   Co..   107. 

Harst   V-  Itati-s.  .'"I'.t. 

1>art   V.  I.owe.   31,   .13. 

l>aii«lierly   r.  It.    Co.,   340    .Ij!), 

|(a\ld   and   Caroline,  Tli.  _^1.f..  I'l- 

Idnidson  v.  ( iraliain.    1-ti.    110,    H>1. 

•120.   ,33s. 
Mavis  V-  Carrelt.   12;',   T-<. 
Mavis  v-  <!ay.  33. 

Mavis  t»,  Cray.   -•»•'''•,,    ,,,„   ,„,.    ,  ,- 
li.ivls  «    It    Co     »'i2    120.  12:',.  Vjr.,  14i. 

227    -^to    2r,1    272,  2S.%,  2K«.  ,3:i8.  .34r,. 
Mavis  V.  Tel.  Co..  3lri,  ,(41. 
Maws  r.  Peek.   211, 
i)invs  V.  I'.ine:!ii.  20.1, 
Mawsoi!  V   Cliiiiii|iney.  7". 
UuwBou  V,  U.  Co.,  137,  158. 


345. 

M. 
1. 

Jo.'s  Appeal, 
o.  V.  Meyers, 


Ci.i. 

.  wks..  ;uo. 


»j,  i;.'.;!,  'jfl2. 


HIT. 

IV.  Co.,  i(h:. 


i,   2!). 
lUkcr,  341. 


iW"WWP""P 


11.  .^:^. 
icwnrt,     315 


HI,  .'MH. 
.    KiT.  Iti2, 
:ir.    110.    ICl, 


vj:!  i'-r>.  147, 

2SS.'  3:!8.  345. 
41. 


158. 


TABLE   OF   CASES  CITED. 

The  References  are  to  SectloDs. 


Day  V.  Bnthor,  76. 

Day  V.  Owen,   218,   219,  255,  2G5. 

Dav  V.  I'erkins,  .'144. 

Day  V.  Itlillfy,    128. 

Day  V.  Swift,  51,  70. 

l)av  V-  Woodwoi'lh,    .348. 

Di'iin  V.  Kittcr,  ."{44. 

Dean  v.  \a<Mar(i,  2(11,  .345. 

Di't.'iiir  V.  licMsiiii,    S,S. 

\>o<l('Uaiii   V.  Vcisc,  l(i2. 

pi'fonl   V.  St'inoiir,   212. 

Dcllavcii  tj.  KiMisiiiKloii    Rank„30,  33. 

Dc  Lavalctte  v.  Wcudt,  344. 

Delaware  iVc.  It.  Co.   i>.  <\'iUrnl   Stock 

Yard.s   Co.,  44. 
Delaware  &<•.  U.  Co.  v.  Naplieys,   .340. 
Delaware,   The,  SI. 
Di'lhl,  The,   137.  1C.2. 
l>elle  V.  K.    <■(>.,  347. 
De  I, isle  V.  rrlesiiiiaii.   62. 
l)e  I.IK  a.s  V-  It.   Co..   2112. 
DeiiiiiiK  V.  It.  <'o..   1112.  11.-.,  205,  345. 
De  Molt  V.  l.arawa.v,  ,84,  201. 
Deiilson   v.  It.    Co.,    r_'(i. 
Dennis  t>.  IliiyeU.    tti. 
Deniils(!ii  V-  The  \VMla«a,  250. 
Denny  v.  It.   Co.,    IL'ii. 
Denton   v.  It.    Co.,    :;.;7. 
Denver  .Ve.  1!.  Co.   v.  Hill.  110. 
Denver  \c.  It.  Co.   v.  Ityan,   .341. 
Depiiv  V.  Clark,   T,S. 
Derosla   V.  It.    Co.,   2(11,  202. 
De  Itolhsehlld  v.  lioyal  Mall   I'neket, 

Km,    I  mi. 
Derrh'U   v.  liaker,  20. 
De    Untie  v.  'I'el.    I'o.,    310,    317,    31!), 

321,  342,   340. 
Derwort      v.     Loonier.   1,37. 
Desha   V-  I'ope,    27,    ."il. 
Deshitles    V-  Tel.   Co.,  ;!22. 
De   Soii'-y  V.  It.    Co.,   .307. 
Ilessaner  v.  liaUer.  7(>. 
De  Tollenere  v.  Fuller,  10,  21,  .38. 
Detroit   V.  Corey,    .3111. 
Detroit  i^c.  It.  Co.   V.  .\dains,   l.'O. 
Detroit  iVe.  1,    Co.   I'.  Hank.    148. 
Detroit  \('.  L.  Co.   V.  Curtis.  .308,  312. 
Detroit  &e.   It.   Co.    V.  -MeKen/.le,   1(12, 

107. 
Detroit  &c.  U,  Co.  V.  VaiiKtelnlmrg, 

341. 
Devereaux  V.  Htiekley,  .34,'i. 
Divlln  r.  Smllli.   .3(11. 
DeVoe«ler  t'.  Tel.    Co.,  ;'..■>(). 
Dewiirt  V.  Masser.    OH. 
Dewev  v.  Howinaii.  51,  .^2,  51. 
Dewil-e  V.  It.    Co..   251.   ".Ol. 
DeWolf  V.  Ins.    Co..    211. 
DexI'T  V.  It.  Co..  270.  272. 
Devo  V.  It.   Co.,  231.  .340. 
DIhl.le  V.  Hrcwn,    84,    271.    272.    278, 

281. 
Dililile  V.  Moruan.    125,    100.    201. 
Dice  V.  Wllllainelte  Co.,  234,  241. 
Dlekens  v.  It.    Co..   2.53. 
Dlfkersoii   V.  Itocers.  72. 
Dlekev  v.  Maine   Tel.   Co.,  341. 
DIekliison  V.  WIneliester,  77,  281. 
DIeksoii  V.  McCoy.   24. 
Dickson  V.  It.  Co.,  142. 
DIokson  V.  Tel.  Co.,  318. 


2,Sti, 


.  228. 


Dlohl  V.  Woodruff,  ,325.  328 
IMelrich  V.  U.   Co.,  241,  242,  2(58 
piKb'ins  V.  Watsou,   2U7 

/.ill  f."-  ','."••  -'1.  -'yS,  287. 
Dillard  V.  K.  Co.,  l.iy    Iju    ir.y    .,oa 

>lihr  V.  ItiMhakJr.   .a        '         '  ""^• 

jMlliiiKUain  V.  Anihonv',   209. 

Dillon   V.  II.    ('(I.,   41)    .•Vjl 

Dininiick  v.  U.   Co.,'  47 

DInnnilt  v.  It.  Co.,  I07' 

DInsinore  v.  K.  Co.,  ;i(i' 

Directors   v.  Collins,   1o(i. 

Dllchell    V.  1;.    (■,,,,   :;;„! 

Dillniiin  .V  Co.   d.  h.  (•„., 

Di.soii  V.  I'.   Co.,  Ill,   ui' 

Doak  V.  Hank.  01. 

lloane    y.  Itussell,  'J!. 

Dohlecki    V.  ."^harp,  -Jltl. 

Dohrce  v.  Norclirt'e,  5;i. 

Dcid^e  V.  I'.oslon  .S.  S.  Co. 

Do'ljre   V.  Meyer,  22.   100. 

Doclite  V.  It.   Co.,  i;20. 

Doo   V.  I.iiniin;;,  72. 

Do;,'^'elt  V.  It.   Co.,  :!06,  341. 

Dolan   V.  (Jncn,  211. 

DoMilniio  V.  .Mcrcliiinis'  Ins.  (!o  ,  12 

Doinihl   |).  l.nrUlinj,'.   57,   Oil. 

lionncll   1'.  .loni's.  :'M4. 

Donohoe   v.  Ciinilile,  (12,  00. 

Donovan  v.  ( i.'iy.  .'I^ll. 

Doorman  v.  .leiiklns,  .•i3. 

Dorian   v.  'I'el.  Co.,  :il!l,  ;t20,  .342. 

Dorr  V.  New    Jer.sey    Nav.    Co.,    139. 

11(1.  li;o. 

Dorr  V.  It.  Co..  2:10. 

Dorrah   v.  It.    Co.,  253. 

Doss  V.  It.   Co.,  ;!I2.  .'148. 

Doly  v.  Ilaukins.  2.3. 

Doty  V.  .'^iront-'.   ,S,'{,   ,8<.). 

Dooirhertv  v.  rose;;ale.   .33. 

Dou.'licrty  v.  I!.    Co..   .308.   .310. 

Dou^rlass  t;.  Chaniplaiii    Truus.    Co., 

Donjilass  v.  Mm, dine,   58. 

Dover  V.  Danvll  e,  .'Ml. 

Down   }  .  I'rcnioiil.    1;',0. 

Downev  V.  Si.iccv,  42. 

Downs' r.  It.    Co.'.  241.  2(52. 

Downs  V.  Morwcord.  20. 

Dows  V.  Hank,  51. 

Doyle   y.  Keysnr.    272. 

Doyle  V.  i;    ("o.,  220. 

Drake  v.  Kicly,   :!4T. 

Drake  v.  Iteillntrloii,    15, 

Drake  v.  White,   13. 

Draper  v.  Del.  iVc.  Canal  Co.,  19,5. 

Driivs<in  v.  Home,  143. 

DreslKM'h  V.  It.  Co.,  104,  201. 

Drew  V.  It.   Co..   241.  208,   208. 

Drew  1).  lied    Line  Transit  Co.,  1.37. 

Drew  V-  Till"  Chesapeake,  12. 

Drew,  Tiie.   2(10. 

Drvden  V.  U.   Co.,  242. 

IMililin  .Ve.  K.  Co.  v.  Slattory,  234. 

Dnckei'  V.  Unrrelt.    47. 

Dull'  V.  It.  Co.,  22,5,  312. 

DnITv  V.  33ioinpsoii,    272. 

Diif.Mir  V.  Mcfhain.  22. 

Diiiraii  V.  Spra(.'ne.  .50. 

DuKBliis  V.  Wutsoii.  207. 

615 


m'Si' 


•"ABLE   OP   CASES   CITED. 


The  References  are  to  Sections. 


CO 

'JO 

c: 

-At 

<" 


r- 

— ^ 


Dnko  V.  R.  Co.,  202. 

Du  Laurans  v.  R.  Co.,  255,  260,  2U1, 

347. 
Dulliig  V.  R.    Co.,    241,    208. 
Dunbar  v.  ll\\\i\ws,  'M. 
Dunbar  v.  K.   Co..  2<Mi. 
Dunbicr  v.  Day,  7(>,  :t27. 
Duncan  v.  Itrrnnan.  .''i;!. 
Dunciin   v.  Map-tic.   2!>. 
Dnnciin   v.  K.   »'<)..   Hi,  21. 
DuncDinb  v.  H.    <'o..    •>2. 
Dunliani  v-  .TacksoM.    tilt. 
Dnnliam  v.  Kiiiiiciir.   41. 
Dunliain   v.  I'Cc.   17. 
Duiiliiiin   V.  U.    Co..    111). 
Dunlap  V.  Clcason,    .s.    2!). 
Dnnlap  v.  UnnlinK.  '-'J.  2IK). 
Dunliip  V.  Int.   Co.,  272. 
Dunlaj)  V.  Monroe.    ;',;il(. 
Dunlap  V.  H.  Co..  2li«!. 
Dunla|i  V.  Steam.    Co.,    275. 
Dnnlap  v.  TlKiriic.  .S2. 
Dnnlap  v.  I.iiinlMrt.  211. 
Dunn  V.  Uraniicr.    :;:!,    l.'fi. 
Dunn  1'.  New    Haven  Stcatn.  Co.,  2fti). 
Dunn  V.  R.    Cn..    lou.    l."iS,    ]i;2.    225. 

2»ili. 
Dunphy  v.  R.  Co.,  241.  2'">. 
Dunsclh  V.  Wmlc,  .St.   tju,  o(,5 
Dnrison   v.  R.   I'n.,   lot. 
Durant   v.  I'.ilini'r.  ;!41. 
Duttdii   t».  Soloiniinsdii,    211. 
Duval   V.  MosUcr.    .",:!2. 
Dnviil   V.  I'Mll.   I'mI.   Car  Co..  .TJ4. 
DwIkIiI   v.  ItrcwMler.  ,s:{,  84.  !>,5,  155. 
Dwindle  v.  It.   Co..   22.S,   208. 
D'Wolf  V.  Harris.  TC. 
Dwycr  r.  It,  Co..  1.'!».  2(K). 
Dyer  v.  Talent t,    .'Ml. 
Dykers  v.  Alien,  01,  02. 

E. 

Eaclo  V.  White.  12.1.  200.  201. 
Eaule  Packet  I'o.   v.  Defries,  .S40. 
Earl  V.  Cadinns.   1S|. 
Kiirle  i>.  Cranl.  HI. 
Earnest   r.  Kx|iress   I'o..    1:!.'?,    l.'!7. 
East   II.  l-'er).'iison, 
East  \e.  I{.  Co.   r. 
East    India  Co.    v. 
East  r.liie  \c.  It.  I 
Eastman  v.  Avitv 
Eastman  v.  ratlcrson.  4." 
Eastman  ii.  Snnliorn.   42. 
Easton   V.  Morley.    1 15. 
Eastoii   ('.  IIoil(;es.  57. 
East  .Sau'lnaw  It.  Co.  v.  Ilolin.   200. 
East  Tcnn.  \-e.  R.  Co.  f.  Urninlpy, 
101. 

.    Co.   V.  C.rcen,    .140. 
.R.Co.   V.  .lolinson.    1.15. 

Co.  V  Miptilifoniery.lO.I 
I'o.  V.  .N'cNoii.  101!.  21  ;. 
Co.   V.  Pou'crs.   liH'i. 

Co.  V  PI.  .lolin.  :il4. 
Co.  V.  Whittle.    84,  80, 


616 


Hall.  112. 
i'Mllcii.  ir,». 
o.   (I.  iiuHhiuK,  200. 
."1.  70. 


East 

Tenn 

1 

East 

remi. 

8ti 

142 

East 

Temi 

R 

East 

Tenn. 

1! 

East 

reiin. 

If 

East 

Ti-nti. 

It 

KaHt 

Tenn 

It. 

130 

1.15. 

Eaton  V.  IIodKeH,  70. 

Eaton  V.  Lancaster,  46. 

Eaton  V.  Lyntle.  15. 

Eaton  V.  Newmark.    104,    182. 

Eaton  V.  It.    Co.,    202,    225,    JOO,   ;;()i 

:ti;t. 

Eckerd  v.  R.    Co.,   2.54. 

Eddy   V.  Livingston,    10,  :10,  :!:!. 

EdelniMii   V.  St.  Louis  Trans.  Co.,  ;{IS 

EilKcrton   V.  It.    I'o.,    2l)l>,    ;H2,   :!4i) 

Edsall  V.  It.  I'o.,   Hi2. 

Edson  V.  Weston.  2:i,  ;{.1. 

Edwiirds   v-  I'arr.  42. 

Edwar<ls  v-  Lord.  2.'!1. 

E<lwards  v.  Martin.  .52. 

SlielTat.    !Mi. 

The    laiiawha.   :!.i;». 

White   Liiii'  Tninsll  Co., 


Edwards  v. 
E(' wards  v. 
Edwards  v. 

i:il. 
E<lwln.  The, 


122.  1.511,   lOti. 
Eichcilii'ruer  v.  .Miinfocl;,    .5;!,   .55. 
Luypt,    Tlie.    102.    100, 
i;ia    V.  lOxpress  Co..  21)0. 
LIcox  V.  Hill,  .so,   SI. 
Elder    V.  Reuse,    ,5'.l, 
i;Mrl(l^'e  r.  .\  da  ins.   15. 
EldridKc   V.  Hill,    ;(:(. 
Lldridu'c   v.  It.    Co.,   .'!0S. 
ElUlns   V.  It.    I'o..    115.    11!». 
ElUhis  V.  Tfiiiis.   Co.,    142. 
Eliel!    V.  It.    Co..    2:!:{. 
Elliot    V.  ItMsscll,   SI.    125. 
Ellis   V.  Narr.'i^'Miisett  i'o..  20.5. 
Ellis  V.  Tel.  Co..  .-tir..  ?,17.  :fio. 
Kllsworlh   V.  Tartt.   To:!,  2!»2. 
EIndra   D.  Sands,   21X,  242. 
Klinorc   V.  It.  I'o.,  1117,  'JSIS. 
Elsee   i>.  Cat  ward,   10. 
Elvira   H.irlieck.  The.  270.  271,  280. 
ICIwood    V.  Td.  Co..  .■!I7.  ."llS. 
Emerson   v    I'Isk.   !•.   17. 
Emery  v.  IIctscv.    '.i5. 
Endly.  Tlie   v.  ciirney,     14*^. 
Emma  .lohnson.  'riii.',  S\,  litii,  X\~ . 
Empire  Tr.Miis.  Co.   p.  Oil      Co.,      i;m 

102. 
EmidreTrans.ro.    t>.  Wallace,    20(, 
Eiit:el   i>.  Scott.   15. 
English   IV  It.   I'o..  25S.  2!tH. 
lOnrhpie,   The.    lOli. 
Epiiendorf  v   It.  i'o  ,  :tO.S. 
Kpps   tv  Hinds.  77,  70,  .'i.'i;!. 
Erie  r.  ranlliliis.   .'till. 
Erie  r.  Schwinu'le,    :!tl. 
Erie  Hank   v.  Smith.   5S. 
1>le  Des.   Co.    I).  .lohnson,  1!t1. 
ICrIc  It.  Co.   V   LocUwood.      i:i7.      HVJ, 

:(:i8. 
Erie  It.  Co.   V.  Wilcox,    101,    100,    i;!4, 

l:!7.    1.'tO. 
Eric  Tel.  Co.    v    Crimes.  .'l50. 
Erie    \<',    Trans.     Co.   p.  Daler,     1.".7. 

14S,  151. 
Ernst   V.  I(.    Co..   341. 
EsiMiiv  V.  Eannlnir.  22. 
Estes   r    Root  he,      10,     22, 
Ethel,  The,   100 
Evans  f   Davidson.    207. 
Evans  r.  R.   Co.,  ,mi,  VlO.  242.  200 
Evnusvllle  Ac,  R,  Co.  V.  Dexter,    :t41. 


.    182. 

;25,    i;(Jti,   ;j()i, 


■iins.  Co,,  ;!lfs. 

i,  :irj,  ;!4(). 


i>u,  nxK 

Tniiisll  Co., 

ill. 


,i.i^-MMHmmam.i 


>..  20.-). 

T.  ;u'.>. 

2!  •2. 
12. 

■<•.  271,  2S0. 
:ns. 


.  ll!t!,  XM. 

I     Co.,     i;!0. 
illnc(\   201. 

^. 


1.  ini. 

.     i:i7,    nvj, 

01,   KHi,   i;m. 

:ir,o. 

.  Dalcr.    l.".". 


.  212.  2<!f! 
ncxtiT,    .'(41. 


TABLE   or   CASKS   CITED. 

The  References  are  to  Sectiens. 


'o.  V.  lliutt,  ;!4i. 
■-.<>.  V.  Vouuif,  1-1". 

2(il. 
K\.   iJo. 

21. 


13:!. 


EvnnsvUlo  &c.  R.  Co.  v.  Duncan    221 

224,  -MS. 
Kviin.svlllo  &(!. 
Kvan.silllf  iVf 
Kvt'i't'tt  V.  V.c  . 
Kvcri'lt  V.  U. 

EvcrcU   V-  SiiiiMi 

KvcrlciKli  V.  S.vlvcstor,    1; 
Kwan   i;.  Llppiiicott,  ."idl. 
Kwart   V-  Sliirli,  82. 
Kwart  V.  Street.    12;!,   124,  .SST. 
Kwlnj;  V.  Kreni'li,   H. 
Kxpri'ss  Co.   V.  Caldwell,   ].")8. 
Express  Co.  v.  Kounlze,  iC7. 
Ezell   V.  Miller,    KHi. 
Ezzell  V.  KugUali,  IGG. 

F. 


Fnhey  v.  R.  Co.,  S4. 

ruirchllil  V-  Cal.   Stage  Co.,  2;n,  840, 

:!47. 
KHirihild  V.  UoKers,   ;!I4. 
Kiiircliilii  r.  Slociim.    Kiti. 
Fairfax   v.  H.   Co.,   271),  271,  272,  27!l, 

2.S,S. 
Fall-mount  iVe.  U.  Co.  v.  Stullcr,  2."i.'! 
Fiillh  V.  East  Inilla  Co.,  21.''i. 
Falk   V.  U.  Co.,  2.^.;{. 
Falve.v  v.  K.    Co.,    ItMi,    148. 
Fasseit   V.  Ktiark,    1S2. 
Fatnian   v-  U-  Co.,  2it,'i. 
Faren   r.  Sillers,    :{(ll. 
Farewell   v.  K.   Co.,  212. 
Farrlsh  v.  KelKle,   :M(I,   ;j47. 
Farlow  V.  Kell.v,   .■(117. 
Fanners'      \c.      Itk.     f.      CUampIaIn 

Trans.   Co.,   im.    1(»7,    l.'(7,   14'2,   14i;, 

20(). 
Fnrnliain  v.  U.     Co.,     l.'Ut,     142.     148, 

l.'-.7,   ms. 
Farrani   v.  Harnes,    3.'f0. 
Faiillitier  V.  Hart,  '2(i'J. 
Faulkner  v.     Mill.   .V.>. 
FaiK-ett    V.  Mehols,   SI. 
Fankner  v.  H.  Co..  '••7.  20fi. 
Faulkner  v.  Wrlclit.  121,  128. 
Favorite.   The,   l(!<i. 
I'av     V.  'I'he  New  World,  .'i.  S3,  240. 
Fed.  St.  It.  Co.    V.  Cllison.   3-lt». 
Felue    V.  n.    Co.,    137,   1  I!). 
Felt  el    V.  n.   Co..   340. 
Fell    V.  Klilirlit,    73. 
Fi'llowes  V.  (ionlon,   10. 
Feniier  j».  U.  Co.,  KM.  201,  202. 
Feryiison   V.  Krenl.   I'J.'l.   K!(i. 
Fertrnsoii   p.  Iliildiell.  3lM. 
Ferirnson  r   I.anlersteln.  8. 
Ferirnson  v.  I'ortiT,  10.  30.  .'{3. 
Fertrnson   t>.  Cnlon   Fnniaee  Co.,  57. 
Feme,   The.   v.  Holme.  337. 
Ferris  f.  T'nion    Ferrv   Co.,   340. 
Flhel  t>.  MvliiKston,    142. 
FIck  t'.  !l.  Co..  2!<8. 
Field  V.  Itraeketl.    1.'!.   42 
Field   r.  It.   Co.,   100,   1.'17. 
Field  V-  C.    S.,   344 
Filer  V.  U.  Co.,  200,  300.  312. 


Flllpowskl  „.  .-^lerryweathor,  80. 

1  UlH.ro .u,  „.  It.   ,:„.,    1^,,   •j.j-;   ^^g^ 

FiiKli  V.  .Mauslifld,  211 
I'lnUlay   v.  Tel.   Co      ;iii') 

FinlU:{i"'cr.;i;i-''^' 
Flnl;'V^t'i^ir:"i;;r-  «•  ^"■-  "»• 

Finn  V.  Vallejo,  ;i4i. 

Finiicane  v.  Small,  32S    3;!'' 

Fii-st  .Nalioual  liank  v.  (iralam,      30, 

Fir.st  Nat.  Rk.  v.  Kelly,  .Ml,  .'il. 

!■  irst  Nat.  l!k.  v.  Mami,    (;.S. 

Hrst  .Nat.  I!k.   v.  Nelson,  ",1 

!■  1st  Nai.Jik.  V.  (icean   Hank,   11,  33. 

llrst  Nat,  Hk.  v.  U.    Co.     ZVI 


r  irsi  .Nar,  i;n.   p.  i{     (•„      .ly, 
First  Nat.l'.ank  v.  Uoot, 'r>7. 
Hrst  .Nat.  lik.  v.  Slinw    l(i'> 
First  Nat.  Hk.  v.  Tel. Co.,  :T4(,) 
iisli^t;.  Chapman,   S3,    l:;i,   123, 

Fish  '».  Clark,  4!i,  S.3. 
Fisher,   Ex  i)arti',  (lii. 
Fislicr  V.  Mrown,  ,"i2.   til. 
Fisher  V.  Clisiie(>,    ,st. 
Fishi'r  V.  I'lslier,    .''it.    .''j^. 
I'ishcr  V.  Kelsev.    1(1.    81, 
Fisher   v.  Kyle,   Ki,   21. 
I'isk   V.  .Newton,  127.  201, 
Fitch  p.  easier,   74. 
Fitch   D.  .Newlierry.   IM,   2.  .. 
Fllclilinri,' iVc.  It.  Co.  V.  llaiina, 
I'ltchlpurs  .\:e.  It.  Co.   V.  U.  Co., 

I.'tti'liltiirir  .1...     O     I  ',, 


138, 


202. 
21  r.. 


Fltclilpni%'.\ce,  It.  Co.   v.  U.  Co..  88. 

Fitchlinrc  ^.-e.  It.  Co.   v.  SnKe,  !»2. 

I''ltzi.'erali'.  V.  .Vdams  Ex.  (.'o.,  11(5. 

I'itzjreraid   i'.  ItlncUer,   t'lil. 

FitzKcr.-ih'  V.  Itnrrell.  3:',0, 

FitzpatrIcK   V.  I!.  Co.,  'J'2(i. 

Flannery   v.  I!.   Co.,  .'ilC 

Flemlni;  v.  Mills,     107. 

Fleminf;  v.  Norlli.impton  Rank,  ."jS. 

I'leminjr  v.  H.   Co.,   22."i,   314. 

Fletcher  V.  Howard,  .M,  70, 

Fletiher  r.  It.  Co..  2'.!.'!. 

FliiMi   V.  I!.   Co.,   i;!7,  2t(!.  247,  2(50. 

Flint   V.  Norwi<l'  iVc.  Trans.  Co.,  3(i 

Flint  V.  It.   Co.,  •j'J3. 

Flint  \<'.  I!.  Co.   V.  Weir.  '240.  271. 

Florida  .s>i'.  It.  Co.  v.  Katz,   250. 

Flower  V.  It.    Co..   31'2. 

Flowers  V,  Siironie.    (iO. 

Floyd  V   Hov.ird.  1!t.  209. 

Flnkcr  v-  1!.  Co..  :t(x». 

FoanI    I'.  R.   Co.,  ;t4."i. 

Foltz   t'.  Stevens.    111. 

I'orte  V-  Slorrs.  47.  48. 

Fovhes  V   Dalletl.   338. 

Ford  V.  Head,   107. 

For.l  t>.  Mitchell.  11(5. 

Ford  V.  Parker.   330. 

Ford  V.  It.  Co.,  •J31. 

F<ird  V.  SInitnons,  ,'132. 

Fordhiini  r.  Co,,  ;!(«>. 

Forr'inati  t'.  Drake.   41. 

Forsee  V.  R.   <'o.,   2(!1. 

Forsyth  r.  It.   Co..   234. 

Forsytbi!  v.  Walker,  40. 

617 


p'^wBS. 


III? 


m 


N'i 


'I 


l:!k 


lit 


CD 

:j3 


c: 


r- 

3.V 


TABLE    OF   CASES   CITED. 


The  References  artt  to  Sections. 


Forth  V.  Simpson,  27. 

Forticr  v.  I'eiiii.  Co.,   loa,  lO(i. 

KortuiH'  V.  Hiinis,  ;{». 

Fort   Worth  \(.'.   It.  Co.   v.  Uosonthal, 

Forward  v.  I'ittaril,     list,     IJO.     i->2 

lL'.i,  12'.). 
Fo.silick  V.  CrciMi,    8,   ."50,   .'{44. 
FosHT  f.  IJiisli,    ."i. 
Fosli-r  V.  Dcslitlil.    .341. 
Foster  V.  l>ixlii'l(l,  ;{41. 
Foster  v.  Kssex  Hank,  .5,  8,  33,  76. 
Foster  V.  .Metis,  ;!:;tt. 
Foster  V.  reltiljoue.    8. 
Fosler  v.  Taylor,    4;i. 
Foiilkes  V.  U.    Co.,   liOl. 
Fowler  V.  Iiaveiiporl,    liiCi,    IStS. 
Fowler  V.  I'orloii,    80. 
Fowler  V.  Lock,    -i. 
Fowler   V.  Tel.  (  o.,  ;{1(?,  ."{17,  .Tlt»,  .32I), 

;{4J. 
Fowles  V.  K.   Co..   101. 
Fox    I'.  Clasleiilmry.   '.'AX. 
Fox  V.  .Me<;r»jinr,  lid,   h'2. 
Fox   V.  It.  <'o..   lii'J. 
FniKiiiio  V.  I. out;.    -11. 
FraUer  v.  I!ee\e.  ."lO,   tiO. 


r  raKer  v.  iiee\  e.  .lo,   iwi. 
Francis  v.  fastleniaii,   40. 
Franels   v.  CoeUrell.   •J4.   2.'!ti, 
Frnncis  v-  .Tusepli,  .")4. 
Francis  v.  U.  <'o..  4o.  •_>ol.  iio 
Francis  v.  i>t.  Louis  TriM'" 

.•{47. 
Francis  v.  Srhraiier,  41. 
Fr;incls  v.  Tel.    fo,.   ;{.">1, 
l-'r:)  III:    a    Tloer.    'Jl  1 


.'{01. 


V.  i>t.  Louis  Trans.  Co.,  o4ti, 


Fr.inU  V-  Iloev.    'J11. 

FninU   V.  Inu'a'lls,     i;  10. 

Franklin   v.  .Nortliwcslorn    Telephone 

re,  .tj:(. 
Franklin  Sav 
FrankiH'r  v.  Kccm. 
Fraser  t'.  Frieiniin, 
Frazier  v.  U.   Co., 
Freeh   r.  U.    Co.,    ;,T. 
'■ ' ^   •    '•■•■'  '•■    -'.  R.  Co.,  100. 


Inst.   V.  I'reetorlns,    ( 
'■      •        .VJ. 
.   i:'.t7. 
01. 
!•  recti    r.  K.    I  o.,    .■!41. 
Freelinrii  &c.  Coal  Co 
io:: 


Frl<Ilev  V.  noweii,  .'■.;!, 
Fried. •nrich   i>.  H.   •'o..  21.'?. 
Frle.l.Tick    i>.  U.   C....  214. 
Prleiiil  V.  Wooils.   I'JO,  1'_'2.  Itlll. 
Prink  r.  •■i.e.  2;'.l. 
Frink   »'.  I'nlter,  L'.'U.  :!0S,  340. 
Frink  v.  Schroyer.    ;U7. 
Froinont   t'.  Cunjitanil.  103. 
Frn-Jt   V.  I'liiinli.  21. 
Fr.wt   1'.  Tl.  Co..  2.-.4,  .300. 
Frost  V-  Shaw.   .VJ. 
Frv  r.  n.   Co..  347. 
F'l'ks  t».  n.    Co..   .'U1. 
Fnller  »).  Hraillev.   27.   S4. 
F'lHer   V.  C.iafs.    7<!.    SO,    81. 
Fuller  t».  Ciirtlss.   344. 
Fuller  V.  Tf.  Co.,  84,  347. 

618 


Fulton  V.  Alexander,  33. 
FultiPii  V.  U.   Co.,  200. 
Fulton  F.   I.  Co.  V.  IJilldwln,  .'1,30. 
Fuiie  V.  U.    Co.,    211. 
Fiinkhoiiser   v.  WuKuer,    332. 
Fiirlter  v.  Hariies,    33. 
Fiirlow  V.  (iiiiian,    8. 
Furniiin  v.  K.   Co.,   131,  206. 
FurstfUhfim  v.  H.   Co.,  201. 

G. 

Oaff  V.  O'Xoll,  41. 

Ca^e  V.  Terrell,   .S4, 

Ca^e  V.  'lirreil,   liil. 

(i.-illes  V.  ilailinan,    US. 

<iiiini'>t  V.  Ciiion  Trans.  Co.,  137,  ,3,3.5 

Caither  r.  Itarnet.  Kil. 
<;ale   V.  K.    Co.,   241. 
(iaiena  U.  t 'o.   v.  Faj 
(laleiia  iVc.  It.  Co.   V. 
(lillelia  \c.  It.  Co.    V. 

21,'-..  ;;t.->. 

Caleiia  &e.  K.  Co.   v.  Yarwood, 
Callen;!    v.  It.    »'o.,   208. 
Callin  V.  n.   Co.,    I!l2. 
tialt  V.  .\dains  Kx.  Co.,  137. 
<ialv('sl(in  \c.  It.  Co.   v.  Allison,    100. 
C-llveslon  vVc.   It.  Co.    v.  Itoollie.     l.-pS. 
<;;ilv(>ston    \e.     U.    Co. 

2!  IS. 
fialveston  &e.  It.  Co. 

2.-..-.. 
<;:ilvesloi;  \e.  It.  Co. 
(Jaintier  v.  Wolaver. 
Canilde  V.  It.    <'o..    2N0. 
Canley   v.  Troy   ('H\-    l!k..   22. 
Cannion   v.  Inlon    I'eny   Co.,   .307. 
iJanlret   w.K^'erlon.   2:'.o. 
Carhraclit   v.  <""iii..  21 1. 
C.\rileii  (irove  Mk. 
Cardner  v-  It.   <"o., 
<;!irdner  r.  Sniilli. 
(J.'irland   v.  I.ane 
<  ;arlick   V-  .lames. 


l.-(i. 


:.   231,   ;iU\.   ,341. 
.Incohs,  ,341. 
Kae,    ;ii,   !ij^  <)7 


340. 


V. 

V. 
43 


V.    lionoboi", 
Kinnehrow, 
Sniilli,   312. 


V 


21 1 . 

r.1. 


Co. 
2!M). 


ir,o. 


r.2. 


!  arret /ell 
.■irrlLMi' 


2(17, 


Diii'iicliol, 

-,,-  ,    .  .   foxe.     li;i!. 

tiarrlsini  v-  Memphis  Ins.  Oo  .  IC16. 
Cai-lr^n    >■    I!     I  '■'..   02. 
Cashweiler  V.  K.    Co.,   202. 

<;iiss  V.  It.   «'o.,   103.  104. 

Casteiihofer  r.    Clair,  74. 

Caty  I'.  Holliday,   .''lO. 

<  I.iiiche   V.  Sliirer,  170. 

Ciixelle   V.  It.   Co.,  :V)H. 

<;awley    )•.  It.   Co  .  .30S. 

Cav  V.  Mois.   .'1,   02  . 

«;av  i>.  Winter.  341. 

Cavnor  v.  It.   Co..  2.34.  341. 

r.'ee   V    K.    Co..   307. 

Ceismer  v.  Lake    Shore    &!•.    H.    Co., 

201. 
f^Jelli'V  V.  Clarke,   74. 
fieneral  Stenni  Nov.  Co.  i».  .Morrisoa, 

12. 
fieiiet   v-  Ilowlnnd.   Ctl). 
Ceorifi'   11.  R.     Co.,    340. 
Ceorela   t>.  K.    Co.,   340. 
Georgia  11.  Co.  v.  Beallc,   137. 


!. 

Iwlu,  330. 
332. 


206. 
1101. 


Co.,  137,  h:\\ 


:ii,  :m.  ."Ml. 

•obs.  .•i41. 

",    '.11,    !IJ,   !I7, 

rwooil,    'Mn. 


U7. 

Allison,    10(1. 
Udollic,     KiS. 

Klmiclirow, 
Smitli,   312. 


Co.,   307. 


Co.,  100. 
2'.Mi. 


2.   .IS,   02. 
207. 

IS.  Co.,  106. 

!02. 

U. 


Ml. 

&.-.  n.  Co., 

.  V.  Morrison, 


,    137. 


Hliillii 


TARLE   or   CASE,S   CITED. 

The  References  are  to  Sections. 


.•{12 


Georfr'a  R.  Co.  v.  Gann,  1.37,  HO 
Georgi,.!  H.  Co.  v.  Iliiydcn.   34(i. 
Gooigiu  iScc.  K.  Co.   V.  M.Curtlv, 

347. 

GeorKiii  U.  Co.  v.  .Murray,  110. 
Georgia  U.  Co.  v.  (>|iear.s,  137,  140. 
Gfi'dy   V.  U.    Co.,   ■,,()[. 
Gerou  v.  Gcroii,  ,")(i.  01. 
Gi'r.stlc  V.  It.  Co.,  ;i(iO. 
Gei'iimn  v.  U.  (^o.,  .'lO,  l.")(i,  157. 
Geriiianla  I'Mre  Ins.  Co.  v.  U.  Co  .  147 

14,s,    Itio. 
Goniiauia  Ins.  Co.  v.  The  Lady  I'lkc 

120. 
(ici-niautowu     I'ass.     Co.  v.    ISropliv 

.307. 
(icrniaiitown  U.  Co.  v.  WalUus,  .300. 
(ii'ttlliKH  V.  Nr'lsoii,  HI. 
Ghorniloy   v.  lilnsniorc,    140,    1.58. 
GiM)()n   V.  r.iviiion.    133,   142. 
Gllilis  V.  Cli.i>.',    10. 
(Jihiiii   V.  .Mc.Mnllin,  11,  .3.3. 
(Jilison  V.  Am.   i;.\.  Co.,  101,  Hi),  l,s,-,. 
(Jll)son  V.  Culver,  2(Ml.  2ol. 

i!tl. ......     ..      1  r..  <  ..!...<  t       1->        n\ 


i:i,  40. 


^...^.^.ril        I/.      .       ..It,     I,        _ 

iillisoll    V.   llillcllcll,    1..,    • 

Gibson   V.  I.i'onanl,    ,320. 

Gibson   V.  .Maiiin,    01. 

Gibson  V.  K.    Co.,    200. 

(iibson  V.  i^iurKo.  i;i;{. 

GiKlio,  Tlie      V.  The  Britannia.  172. 

(iilbiirl   V-  I»alc.   .3.;2. 

(iilboit    V.  r.iMch.    301. 

Gilbert    V.  lloOinnn.  7.">. 

(Jllberl    V.  Manclic'ster  Co.,   22. 

Gille   I'.  Mbl.y.  7(i.  ,Sl. 

Giles  V-  I'.uinlleroy.  78,  70. 

(illes  V-  Crover,    l.*!. 

<;iles   t\  n.    Co..    200. 

CMlhooly  V.  N.    Y.    .Vc.    St.   Co.,   2.S(;. 

Gill   V.  K.   Co..   1t>3. 

Clllenuiilef   v.  K.    Co..    220.    24(i. 

Gillespie    V.  It.    Co.,    .3.37,    340. 

Gllli't    I'.  Kills.    1211. 

Gilliiil   V.  LviK'li.  .'■..3. 

GillinKliain   v.  It.  " 

•  Sillis  II.  I!.    Co.. 

Glllis   I..  'I'el.    Co., 


Co.,  20.S,  200. 
J3I). 

. 317.  .320, 

Gillslinnnon   v.  It.   Co..   22t>. 

Giliuore  II.  ('Mi-nian.  .S4,  122,  123.  KiO, 

<:ilpln   V.  Howell.  01. 

fiilson   ji.  .M;iilhi.  .'"i.'i. 

Gilsoii  V.  <  lu  inn.   21.">. 

(Jinuotl    JI.  It.    Co..  30M. 

Ciinnl  Fire  Ins.  Co.    v.  Marr,  .^S. 

(Jlsbonni  V.  Ilnrst,  S'A. 

Given   II.  Tel.    Co.,    317. 

Gliiseo  V.  It.    Co..   270.   271.  201. 

Gleailell    V.  3"lionison,    102,    174. 

Gleason   v.  Heers.   .30,    4.3. 

(;ienson  v.  Itrenieti,    341. 

<;ieason   v.  I>re\v,    .M. 

Gleason  v.  fJooilileli  Trans.   Co.,   1.3."), 

143,  2.").'),  272.  2S0. 
Gleijson   II.  Virt'liiln  Co.,  .338. 
Gleeson   ti.  It.  Co,.  1211. 
Glenn   V.  Sontli.    K\,   Co,,   1.5fi. 
(Jlover  V.  Ilnrbrldt'e,   .33. 
Glovlnsky   v.  Cnnanl  Co,,  272. 
Godflard  v.  Mallorv,   11.%.  20,'). 
Goddard  v.  H.  Co.,  208,  200,  .302,  34.'i, 
348. 


Goddard,  The  l\  n     no 
Godfrey  v.  It.  Co.,  -'.ijr, 
.oelz   V.  It.    Co.,  -Jtitl      ' 
GoKKin   V.  n.   r,,,,    i,J7     ir^3    ,„ 

G«";<'«  V.  M,..7u>,lless.    ^h  ^^• 
;0  ,  ..M   V.  Newbnin.l,    o,,-"- 
<.ol(ley    v.  It.  ,•,,      ,.,,;    .-,    '• 

Gold    Ilnnler,    The     l'<i7! 

"^;!nsli:;:ro4-  '^v-'^'n^ton  .. 

'ioldsniiti,   V.  It.  Co.,  101 
<.ol(lsleiM  V.  Ilort,  .■)]    ,'i4' 
GoldslelM   V.  K.    Co.,   O;{0" 
Good   II.  ];,    c,      ].-i^ 

Goodiill   V.  Klehiirdson.    T,H 
Goodlellou-   V,  .M,.,.„„n      ..^jo 
Goodlellou-    V.  1!,  (•„     :i;.„  "• 

Goodrich  ti.  Hiililianl'    314 
Go.„rieh   y.  Thompson.   115    127    205 
(■oodsell   V.  Tnvlor     T")  *         ' 

Gooilwiii   V.  It,'  Co'    '..oV 
Goold  V.  Cliiipin.    L'(M) 

*■,'"■''""  *'•  "'"■''••iiian,  'l(!fl    ,^■.7 
Gordan   v.  K.    Co     •>■>■;       ' 
<iornian  v.  ('.•MiipbeTf  ''l 
Gonh.n  JI.  Ilnt(hin,^o'n,"83    84 
Conlon   V.  Little,  i;;;)  '       '  **■ 
Goi-don   v.  n,  ('„     ],;.>   .,.,„  „,„ 
<;">-e   V.  Tr:,ns.   Co     -K-r     '  '^"'"• 
Gorh.ini  .\|,„,f.  Co.  'i,  KJir,-,,   iqo    to. 
<!oriiiley    V.  it.     (•„      .'Ul     ^^   ■  "•^'  ^**- 
Gosling-  V.  I!lrnie.  'v.> 
Goslin-  V.  Ili;,':,'lns,    131 
Gosway    11.  li.    Ci,      ..,,7 

G'lG   I'.  lOiisiiion.,  i;i7,  i.'-jO 

GoMKer   ,..  ,I,,Pv.  ].r,( 

Gould    V.  Ch.ip'iii.    104 

Gonid  V.  Hill.    l;i>l 

Gould   )•,  (V.iiral   Tru<;t   Co,,  ,17. 

Gould    V.  I'.,    Co,,   •_'.-,(;  ' 

Gowdy  V.  r.you.  loo,'  nO 

*■  iJlo'  "'  '^''•""'''    1''7.    147,    140,    1.34. 

Grace  V.  r.iliner,    20 

Gr;iilin    ;-,  |{,    c,,  ,  ^>._).-, 

•  ■'rair.'ini   v.  1!,  Co,,  -.'.SO" 

(irairenreiil   v.  1{.    (',,     'oo.";. 

Grahiiiu   !',  riiivls,    1:17,    lOI,    .3.3s. 

GraliMMi   7.,  I!.    {•„.,  230,   :ni,  31s" 

Grand  liapi  's  R    Co.,   „'  Huntiev,'236 

(iriind  ,Vc.  I!,  Co,    d,  I!oviI     't\.i 

Grand    iV-c.    It.    Co.    y.  ni'tn,"in7  112 

Grand  Tr-inl<  H.  Co.  ,,.  Stovous,   247 

<.riini:c   v.  Td,  (',.,.  312 

•ii-iiut   t',  Italicr.   :\i\. 

firaul    I'.  Ludlow,    .33. 

Grant  ii.  X.-ulou,   272. 

Grant   11.  Wond,   t!13. 

Gr;iidie  P.Mrik   )i.  Klchardson.   .'iO.   m 

Graves  v.  H.nrll'ord  Sleani  Co     '^0'' 

(ir.ives   11,  I{,    Co.,    1  12. 

G'ra\-es  V.  Sniilli,    22, 

Gr.ives  V.  33cl;iior.  10, 

Gray  i>.  Carr,    21."), 

<iray  v-  Com..  72. 

Gr.'iy  V.  Harper,  100, 

Gray  v.  .laekson.   lo:!.   100.   t07. 

Gray  v-  Merriaui,  31,  X\. 

619 


^^^^BS« 


TABLE    OF   CASES   CITED. 


The  References  are  to  Sections. 


I    I 


If 


O 

c: 
< 

MtOMll 


r- 


Oray  ».  R.  Co.,  2i>r>. 

<irubor  v.  R.    Co..    L'i«. 

Greut  Nona.  U.  Co.  v.  IlniiHoii.  l"-'.'). 

Oront  Nortb.  U.  Co.  v.  SpcphtTil.  272. 

278. 
(Ircnt  VVeHt.  R.  Co.  v.  Bluko,  2iil.  2!t2. 

21  Ui. 
Ort'iit     West.   R.   Co.  v.  Rlower,     8G, 

Great  West.  U.  Co.  v.  linriis,  !)1. 

(ircnl  West.  K.  Co.   v.  Ci-micli,  205. 

Great  West.   U.  Co.  v.  Hawkins,  l.'i.". 

Greal  West.  K.  Co.   v.  .\illler.  :;.'i7.  2U(). 

(ireal  West.  U.  Co.   t>.  Siittoii,   ".i2. 

Great  West.  K.  Co.  v.  Uediuuyue,  34.'>. 

Green  v-  llirehanl.  .I. 

(Jreeu   V.  Uuehanl,  .'!.'{. 

Green   v.  Clark,  211. 

Green   v.  I  Minn.    2li'.t. 

(ireeii  V.  Holllngswortb,    10,    22,    : 

3,S. 
Green  v.  The  Rrlilfieton,  205. 
Green   v.  U.   Co.,   11(1,  2:M,  2S2,  28H 
Greenleaf  v.  U.   Co..  'Ml. 
GreKory  v.  U.   Co..   l.'ii*. 
Gregory  v.  Stryker.   H. 
Grethen  v.  If.  Co..  'MA. 
(irey  v.  Mobile  Trade  Co.,  137,  102 
Grey  v.  I'ullen.  301. 
<!rltl!lli  V.  Cave.    SI. 
Grlllith    V.    luffledew.  211. 
Grllllth  V.  ZIpperwirk.    'Xi. 
Grilllllis  tf.  Wolfram.  :!01. 
Grill    I'.  <;eii.    Iron  Screw  ('o.,  ICC. 
(irindle  V.  Ex.   Co..   20."i. 
(Jrlnnell   v.  Cook.    27.    70,    S2. 
Griniu'll   V.  Tel.   Co..  .'ilit. 
Griswold   V.  Ins,   Co..  2l.'t. 
(Jrlswold   V.  K.   <'o..  21(1.  24S,  240. 


J3. 


ns    K\.    Co.,    l;«t,    142, 


(JrosiMii   v.  Adii 

3:!4.   3;!7. 
(ironslMill    V.  WltlliolT.   lliU. 
Grosvenor  v.  H.   *'<>■•   112.   113. 
Grovcr    (Jie.    Machine    Co.   v.    R.    Co., 

107. 
Grover&c.  Co.  v.  R.  Co.,  ll.-i. 
(inillanino  v.  ('on.  Trans.  Co.,  l.W. 
(fidllannie  v.  nandjarg  &c.    Co.,   l.'iO. 

102,    174,  200. 
Onlnii   V.  R.   Co.,  204. 
Gnlf  iVe.   U.  Co.   V.  Halrd.  101. 

R.  Co.   V.  Ca'rnpliell.  200. 
R.  Co,   V.  <'oon.    ."(47. 

R,    Co.   V   Gnwn.    l.^S. 
R.  Co.   V.  <!o' lin),'.     10O,    102. 
R,  Co.   V.  llnnie.    l.'-.S, 
R.  Co.   r.  r.evv.  310,  .340,  S.^O. 
R.  Co.   V.  Metiown,   137,   1.30, 


Gnlf  iV< 
Gnlf  .*ci- 
Gnlf  \-< 
Gtilf  \o 
ffnlf  .V<- 
Gnlf  \e 
Gnlf  .«ie, 

240.  248. 
Gnlf  &c.  R 

20S. 
Gnlf  &c. 
Gnlf  {ir 
Gnlf  An 
Gnlf  A-e 

1.18. 
Gnlf  Ae.  n.  Co. 
Gnlf  Ae.  R.  Co. 
Gnlf  *e.  H.  Co 
Gnlf  &( 

320. 


Co.  V.  Moody,    2.1.'),    2.18, 


R.  Co, 


R.  Co.  V.  Ronndtreo,  2.13, 

R.    Co.    V    Sehleder.    341. 
R.  Co.   V.  Shields.    302, 

V.  Trawlek.    80,    1.37, 

V.  Wnllen.   .30?!, 
V.  Wllhanks.   100, 
V.  Wllhelm,    iriO, 
R.  Co.  V.  Wilson,     100.     22.1. 

620 


(inlh'dse  v.  Howard,  ,30,  .33. 
Gnlllver  v.  Adams    Ex.    Co..   84 
201.  ' 

Guruey  v.  R.  Co..  272. 


112, 


H. 


IIan<di  V.  Eenrlnj,',  ;".,,- 
Haas  V.  Kas.   Cip,    u.  'co     '>at 
Ilackett  V.  K.  Co.,  121 
Hadd  V.  V.    S.    K.\.   Co.,   lol 
Uadeneami)   v.  U,  Co.,  .'loii 
lladjl.  The,   142,   102,  104. 
Hiidley   V.  Ha.\endale,  .'H.-,    ;[4<j 
lladley  V.  Cross,  24    2.32 
Hadley   r.  Tel.   Co.,';ri>r',340 
lladley   V.  Cpshaw,    80 ' 
Miielirik   V.  (jirr.  22S. 
ll.'iKJin   V.  II.    Co.,    ,31s 
IIaf,'el)nsli   V.  I!ii:;land' 
Hau'erslown  I!k.    v.  Ad 

L'12,    2!  17. 
llatfKerly   v.  K.  Co., 
Il.'ilu'h    V.  Urooks.    .3 
Haini's  f.  U.  Co..  27 
Hale  V.  r.arreti 
Hale  V.  .New  ,1 

121,    137,    ic; 
Haley    v.  U.   C 


107. 


3S, 
laDis 


70,  11.-), 


Kx. 

21 K). 


Co., 


JO. 


ersey  Steam,  (.'o,,  84 


2tM1,  200. 
Hall    V.  Cheiiev,   121.   122    T'O 
H;lII   v.  HeCnir.  2t;."i, 
Hall   V.  I'Ike,   72.   74.  .327. 
Hall    V.  I'ower,   207. 
Hall   V.  H.  Co,,   22.   101.   10,S,  lis    ISO 

1.SS,  240,  212,  274,  .3.3S, 
Hall    V.  Itenfro.   84.   SO,    110,   130 
Hall  V.  Warner.  0, 
Ilalienliake  v.  I-'Isli,  70. 
Halllday  v.  K,  <'o,,  lO.->.  lO.S. 
Hallock   t'.  Miillelt.  1.3, 
Hally  V.  M.irkcl.  4.-.. 
Ilalwi'rson   f.  Cole.  213. 
Halyard  v.  Hecliehnan.   43. 
Hamlinri.'   I'aek,   Co.  r.  Gallinnii.  271. 
V.  I'.lsl  iier.     47, 

.Mel,ani;lllln.   20. 

R.  Co.,  150,  230,  241,  244, 


V. 

17. 


Hamilton 
Hamilton 
Handlton 

317. 

Hanilllon   v.  StJile  Rank.  04. 
Hamlin   v.  R.    <'o..   237.  31.-,.  346. 
Hammond  ji,  MeClnre.   .337. 
Hammond   v.  It.    Co..   225, 
Hampton  v.  I'nII.    I'al.   Car  Co..  .32.", 

328. 
Haneoek  v.  Franklin  Ins.  Co,,  00,  (S. 
Haneoek   v.  K.'itid.  74.  70,  327, 
Haiel   V.  Hayiies.   127.  'MC.  315, 
Hnnilforil  r.  Palmer.    25.    42. 
Hainia  v.  Holloii,    .52.    58. 
Hatina   t»,  I'heltis.  20.  27, 
Hannllial  &e,  I{,  Co,   f,  Martin,  227, 
Hannibal  &r,  11,  Co,   v.  Sv  iff.  84.  218, 

224.  270.  271.  272.  274.  280. 
Hanlev  V   R.  Co,.  217.  2.33. 
Hanlev  V.  Sndth.   78. 


Hansen  v.  R.  Co,. 

200, 

Haiislev  t»,  H,   Co. 

,  315. 

Hansom  v.  R.   Co, 

.  208. 

Hanson  v.  R.  Co., 

103,  11.1.  260,  208, 

312,  348. 

<-""•.   84.   112, 


"o..  2W. 

101,  107, 

;0(j. 

I. 

■«•"',  ;m9. 

340. 

18. 

n>s    i:.\.    Co., 

H").  i;i)o. 

Jim.  Co.,  84, 

!>. 
J,  120. 

108,  US,  1S(5, 

11  !t.  i:io. 
ins. 


4:i. 

inllmiiii,  'J71. 

r. 

1,   2(5. 
•-'.■in,  241,  214, 

,  fi4. 

M.-,,   ;M(i. 

:!:i7. 

.'■>. 

far  Co.,  .IS.", 


^.    C.i. 

(iO,  (12. 

.  ;^27. 

-..  ntr. 

42. 

Iiirlln 

227. 

vift, 

S4.  21,'?, 

0S'.», 

w. 

TABLE   OF   CASES   CITEIi, 

The  Ref  ereuceg  are  to  Sections. 


HarilcKK  v.  Wlllnril.s,   10. 
HiinlcuUiTgh    D.  K.   Co.,  2.">1. 
Hanlln«  V.  Int.   iVc.   .Viiv.    Co.,   lol 
llardiiit;  v.  Tlic   .Maverick,    12. 
llariliiiK  V.  KowhIii'IkI,  ;i47. 
llanliiiaii  v.  Ilrt'tt,   ll,H. 
Hardy   v.  Jaiuioii,  *il. 
Hare   i>.  Fiilli'i',    l.'i. 
UarkiT  V.  liciiii'iil,  tis.  2n!l. 
llarkncss  v.  'I'd.  Co.,  :!1',(,  342. 
Harlow  v-  lliiiiii.sloii,   .'Ml. 
Ilariiioii.v   V.  KiiiKliaiii,   2li.'i. 
Harold   i;.  U.   <  d.,  2.-il. 
Harp   V.  The  (W'.iiid   i;ra.   In,'!. 
HarpiT  V.  (ioodscll,  2S. 
Harper  v.  .Milwaukee,  ,"(il. 
Harper  v.  Seeoud  Hank,  .">.S. 
HarriiiKlon  v.  Kiii«,  H,   l.'i. 
ilarriiiKloii  v.  H.vles,  ,si,    Ijl. 
HarriiiKloii  v.  .MeSlniiu',  .sj,  <,i,'i,  O.s. 
HarriiiKtoii  v.  Sii.vder.  l.'i.  Id,  21. 


Howe.   2',i().   2',i2. 
I.,oiiil)ard.  .'il. 
I'aikwood.  IMt.  1;J0,  142. 
K.   Co.,   St),     lo:i,     107,     l.'iO, 


15,  2fi6,  20S. 


Harris  v. 
Harris  v. 
Harris  v. 
Harris  v. 

:vn. 

Harris  v-  Kami.   12n.  21,'!. 

Harris   v.  Stevens.  227.  2i!4. 

Harris    v.  'I'el.    Co..  lilS,   :{!!», 

Harris  v.  WoodrnIT,  27. 

Harrison  v.  <  ollins,  ,'i(il. 

Harrison   v.  H.   Co..   \IT>. 

Harrison   v.  Kav.  S.'{. 

Hart    V.  .Mien,  .si.  VSt. 

Hart    V.  I'.Msli.  Ull. 

Han    V.  Si>iiiuer.    21. 

Han  V.  It.  Co..  i(i;i.  U.S.  i:!7,  irw,  142, 

!.-.!•,    2'.il. 
H;in    V.    Tel.    Co.,  .'t2n,  .'MO. 
Han    f.   Ten     ICvik,   02. 
Ilartan    v.  It.    Co..  2ss,   2!t2. 
Htiiier  V.  r.iaueliard,  2.''>. 
Hart  ford  v.  .lolinsim.   24. 
Hailsliorne   iv  ,l(dinston,   2!.'>. 
Hartwell    v.  .\.   l>ae.  K\.  Co.,  14!). 
Hai'\ey   V.  Murray.    i;{. 
Harvy   v.  I'iUe.    Hill. 
Harvey  v-  IS.  <'o..   1 12. 
Harvey   v.  Itose.  ,S4.   l,'(,-». 
Haslirouek  v.  Vandervoort.      51,      ,^2, 

till. 
Hasklns  r.  Patterson,  .""il.  04. 
Haslain   v.  Adams   i;\.  Co.,  84,  201. 
Hassaiii   v-  Ins.  Co.,  214. 
HasMiitis  V.  I'epper,  .SI,   i:i0. 
Ilastinus  V-  It.   t'o.,    ITiti. 
Halclier  V-  It.    Co.,   2'.m;. 
Hateliett  V.  lllbson.  1,1.    1(»,  47. 
Hatchet t   v.  The      CoiiiprolulHe,      100. 

170. 
Hathaway  v.  Ilntdy,  S. 
Hathaway  v.  U.  Co..  .•141. 
Ilatton  V.  K.  Co..  241. 
Haven  v.  \m\\,    .11. 
llawcroft  V.  n.  Co.,  221.  2rW,  250. 
Ilawes  V.  Knowles,  207. 
Hawkins  v.  IIofTimni,  •270.  271.  272. 
Hawkins  v.  It.   Co..   l,r.,   i;W»,   100. 
Hawks   V.  I.ocke.    24. 
IliiwUiorn  I'.  HniiiinoQd.  73. 
Hay  V.  It.  Co..  303. 


Hayes  v.  Wells,  1 1.  ,st,  j;(;i   200 

Haynie  v.  Waring,  .•;;; 

Hays  t>.  tiallaiilier,  :ill. 

Hays   V.  Uej.nedy,   IJl,   l::;!,   l;(.(,   io,t^ 

Hays  r.  .Millar,  .s.'i. 

Hays  1;.  K.   Co.,  ;ij,  21)2 

Hays   J).  Kiddle.  To. 

Ha/.anl   v.  It.  Co.,  L'cKi,  :i\'j, 

Ha/.man  v.  l|.,lhil<eM   Land  Co.,  .lOO. 

Heard  v.  liii  \»er.  .il. 

liealey   p.  (Hay 

Healiii;;  v.  *  oil 

Hi'aly   V.  It.   Co, 

Hi-atli  V.  It.  Co 

Hi'atli   V.  Siiverliiorn  Co..   .52.   70. 

HeatoM   V.  It.  Co.,  1;;;. 

Helloes  V    It.  Co..  '202. 

HeKcnian  v-  It.    Co.,     2:;i.     2:i2 

2:!li.  :!|0. 
Hell    V.  It.    Co.,    107.   1111.  :!;!S. 
lieineuian  v.  It.   Co..  l.'Mt,  2'JO. 
Hei!Oan    V.  Tel.   Co..  li'.'o. 
Hidni   t'.  Mit'auKhan,    2:'.7,    2r,0, 
llelene.    Tile.    172, 

Heiiiwiil  r,  11.  Co.,  1011.  m;;. 
Helhnan   v.  Ilollada.v.    lliii.   '271.   2 
llelsliv  V.  .Mears.   lo'i. 

i:},  •2(il». 


,  71).  M. 
rell_._.-.,s. 
,  2.i7. 
..   2(1.-1.  2'.C.. 


2.35. 


:1I8. 


;;(>2. 


Mil. 

t    (trlcaiis. 


Ileinniiniiway   V-  It.  Co..  2 
Heniiddll   f.  Clieney,    '2'd. 
llendriiks  r.  It.   Co.,  ■j(;7, 
Ilendrix   v.  Harniaii,   lis. 
lleiidrvx  |i.  It.    ( 'o  ,   22.'i. 
Henderson   v.  It.   <'«.,  :il(>. 
Henderson   ti.  Stevenson, 
ilendersiin  v.  'I'lie    .Maid    ' 

■m:>. 

Henley  v.  Mayor.   XM. 
Henrv  1'.  I'atter.Hoii.  .s. 
Henry  V   It.   Co.,   M.  ;i47. 
Hensel    V.  .Nol.le.    'J(i. 
Herltert   v.  .Markwell.   HO. 
Herlihy  t».  Sniiili.  21. 
llennan   c.  l>rinl.\M(li'r,    21. 

Hernianii   v   (I Iii'li.    ln4,    •iOl. 

Herman   v.  .'Ma.wM'll.   .50. 

Herniann  t'.  West.     I'iii(jll    Tel.    Co., 

l.-,s. 
Herrick  r.  t;alla;:lier,  208. 
Ilerron    v.  Tel.    Co..   .'il8. 
Hersh   V.  It.  Co..  02. 
llcrvfoni  V.  I)avis.  ,S. 
Ilislonville   It.   Co.   1'.  SIdehlH,   (iX 
Hewetl    V.  It.    Co..     12(i.     10(1. 
Ilewetl    V    Swift.  2'.I7,  208. 
llewlelt     V    Tr\.     Co  ,    It'JO. 

Hexainer  v.  Sonllial,  10. 
Ile.vamer  p.  W'elih,  .'101. 
Ileviaiid  V.  I!ad«er.  51. 
Hildianl  t>.  It.  Co..  2.55 
Hihernia     Ins.    (;u.   v.  St 

It.  Co.,  100. 
Hihler  V.  McCartney,  100. 
Hickey  V.  It.    Co..    :iii. 
HIckMian  (i.  It.   Co..  'JCO. 
HickiMan   f.  Thomas,    •20, 
Ilickok   r.  Ituek.    21. 
Hicko.x   l».  It.    Co..    irj.    IK!,   272.  281, 


250,    202. 
Louis    &c. 


:f27. 


2.S4,   '285. 


621 


TABLE   OP   CASES   CITED. 


The  References  are  to  Sections. 


r: 


ii    I 


.< 

c:> 

za 

c: 


•.a 


I  I 


I'l 


Highly 
Hill  V. 
Hill  V. 
Hill  v. 
Hill  V. 

Hill   1^. 

Hill 

Hill 

Hill 

Hill 


V. 
V. 
V. 


HIeks  V.  U.  Co.,  341. 

Hide  V.  I'roprii'tors,    I'M. 

Uiggiua  V.  Kiutiiuim,   22. 

HiBgins  V.  U.   Co.,  l.'iT,  225,  226,  248. 

2.".7,    207. 
Higgius  V.  Wutervilet    Tp.    Co.,    2C7, 

V.  Ollnior.  22.1. 

Fiiiigiiii,  ti:i. 

Ni'W    Hnvcii,   341. 

(J  won,  3:u. 

It.  (.;<).,  lU'.),  110,  142,  147,  l.'iC, 
3(t4. 

.Spear,  211. 

Slurgt'iiii,    H!(i,  3.'!7,  3;i8. 

Tel.   <'i).,   -.VM). 
.    Wiggins,    2!i. 

.Mfg.  Co.   V.  It.  Co.,  KK),  103,  201. 
Hilllard  v.  Cuold,    2*>1. 
Hllliai'd  V.  Kh'liardson,  .'JOl. 
Hillls  V.  It.   Co.,  -'Ml,  :i2S. 
Hills  V.  KaiiU'ls,   X\. 
Hills  V.  .Mati'liill.    KUi. 
Hlllvard  v.  Crahlrcc,  43. 
Hilton  V.  Adams,  7t).  71). 
Hilton  V.  Waring.  .^S. 
HliK  kie.v   V.  It.    <;o.,    \m. 
Hinton  V.  Dilililn.   11. 
Hirscii  i>.  Quakfr   City,    201. 
Hirschlmrg  v.  Dinsinorc,  l.")S. 
Hir.sclioM  V.  I'ai-krI  Co.,  270,  272. 
Hirsh  u   Tlic    Quaker   City,    202. 
Hlrshlii'ld  V.  It.    Co.,   201. 
Historian,    The,    17(». 
Hoadlcv  V.  NorthiMii  Trans.  Co.,  120, 

i:i7.    147,    lis,    !.■>»,    1(52. 
Hoar  V.  It.    I'o..    2J.">. 
Hoarc  V.  I'arkcr,   .''i4. 
Holiart    V.  I.iilli'ticid,  211. 
Hol)l)s  V.  It.    Co.,    2.")0,    206,   346,   350. 
Holison  V.  11.    Co.,    .ill. 
Hockctt   V-  Slate,  .■i2:!. 
Hoclini  V.  WeillieriiU.   341. 
Hoeger  r.  It.   Co.,   27.S.  2S(i. 


•Z"\,  2.'i0,  200. 

:',07,   310. 
10.    2().    27, 
280,  287. 


12.'-.. 


Holfiiauer  v.  It.  C( 
Hiilbrook   V.  Maker 

IIoll>rook  V.  It.   c,)..  

Holl.rook  V.  Wight,    10.    2().    27,    200 
Holdrlilge  t).It.  <"o.. 
Hole  V.  It.    Co.,    :iltl 
Holfonl   V.  Ailanis,  iX). 
Holl   V.  Crillin,   10. 
Holling«orlli  v-  Hrodrick, 
HoUlngsworth    v.  How.    2f 
Holllsler  V.  Central    .Nat.    Hk..   31 
Hollister    V.    Nowlen.     St.     112. 

i:!.!.  i:!i!.  i:!0.  i4o,  ii:!,  140,  217, 

231,   27(1,   271. 
Holly  V.  It.    (\).,   .■'.02. 
Holmes  V.  Criiiii',   ."i1. 
Holmes  v.  It.    Cr)..    230. 
Holmes  V.  Waketteld.    2.''.7,    207, 
Holsapple  V.  It,   Co.,   130,   102. 
Holt    V.  Westeott.   213. 
Holtzelaw  v.  DnlT,  47,  49. 
Holyoke  v.  It.   Co.,  347. 
Holzalt  V.  It.  Co.,  315. 
Homes  v.  Crane.  70. 
Homer  ».  Thwlug,  21. 


110. 

:i8. 


298. 


Honkloy  v.  R.  C,  101. 
Hood   V.  It.    Co.,    107,   285,   291 
Hooks  V.  .Smith,  l(i,  21. 
Hooper  v.  It.  Co.,  211. 
Hooper  V.  Wells,    84,    12.3,   140    162 
Hoover  V.  liarkliooi',  .•;;i(i.         ' 
Hope  V.  Lawrence,   (i.'i,   tii3. 
Hopkins   v.  (.'oiineli,  li'.t,',. 
Ilo|.kliis  V.  K.  Co.,  1(«), ';J41,  ,347,  348 
Hopkins  V.  Westeott.    142,     184,    270' 
272.  '  ' 

Hopper  V.  .Miller,  ll">. 
llorue  i».  .Meakin,  24. 
llorsely    V.   Ill'.'llleh.    1(5. 

Horlon  r.  .Morgan,  (>1. 

HosoM   r.  Mctrory,  !),'). 

llosmor  V.  (lark.  20. 

Hospi'S   V.  It.   Co.,  340. 

Ilosti Her  V.  Cray,   Kit;. 

Hosteller  v.  It.    Co.,    IliO. 

Hostler  V.  Sknll,  lit. 

Hot  Springs  It.  l"o.   v.  Trippe,  10.3. 

Ilollek   V.  It.  Co.,  2(;.''>. 

Ilongh    V.  K.    Co.,    .341. 

Hoiiser  V.  Kemp,   .'■|2. 

Honser   v.  Ilonser.  .""lS. 


Ae. 

iV:c. 

\-e 


4. 

Co. 
Co. 
Co. 


Ilonser  V.  Tully 
Houston  Ac.   11 
Honstiui 
Houston 

30(!. 
Houston 
Houston 
Hiiuston 
Houston 
Houston 

2.".".,  2t;ti. 
Houston  iVe. 
II(i\iston  \e 
Houston  i,Ve 
Houston  \e. 
Houston    \c 

20,S. 
Houlon 
Howard 
Howard 
Howard 
Howard 
Howard 
I[r)ward, 
Howe   .Maeliiue   Co, 
Howe    Maililne    Co 
Howell    V.  .laeksou, 
Howell   V.  Morlan. 
Howell   V.  .Morton. 
Ilowtli    II.  I'r.iuklii 


70. 

V.  jVdanis,  20.",. 
V.  Murk.'.  l;!7. 
V.  Clemens,  220, 


It.   ("o,  V.  Cowser,  341. 
It. Co.    V,  (lorlielt.  2.')3. 
Co.    V.  Hill.  .'!li;. 
It.  Co.    V.  .laeUson.  .345, 
It.     Co.   V.  .Moore,  22."), 

It.  Co.  V.  I'ark,  103,  137. 
It.   Co.   V.  Itnst.  '.fj. 
It.  Co.    «;.  Smith.  :'.l.-.. 
It.  Co.   V.  Sympkins,  .'Ml. 
It.    Co.  V.  Wusiiliigton, 

V.  Hollldav,  ,'".0,  01. 
I'.  Malii'o<k.   ;«. 
V.  Cohli.    2."0. 
V.  I'arr,  I."-.," 
V.  Itoelien.  8.  20. 
V.  Ste;nu,    Co,,   200. 
The.   V.  Wlssman.   170. 


V.  Itrysou 
V.  I 'ease, 
7.3. 

2(». 

4S. 

70. 


344. 
70. 


Hov   V.  (Iroiiidde.    .341. 

Hovt    V.  Hudson.  311, 

Hnliener  v-  K.    Co..  30S. 

HuMiard   v.  Coolidge.  .32. 

Hulihard  v.  Ilarnden's  Kx.  Co.,  129. 

Huhliard   v.  Kowell.  344, 

Huhhard  v.  Tel.   Co,.  310,  349. 

Huhliell    V.  Drexel.  01, 

Hudson   V.  It.   Co,,   1.^'<.  24.3. 

Hudslon  V.  H.  Ci>,.  272. 

Hnev   V-  Cahlenheck.  .329. 

Hnff  V.  It.   Co..   30S. 

HnfTord   v.  It,  Co,.  2(4.  2.58. 

Hughes  V.  Uoycr,  14,  42. 


622 


mmmmmm 


TABLE   or    CASES   CITED. 


The  References  are  to  Sections. 


5,  291. 


■^<  140,  162. 

uo. 

■-541.  .147,  348. 
12.     184,    270, 


rippe,  10,3. 


\«liimsi,  20.-. 
Itiii-u.'.  i;!7. 
L'li'riu'iis,  220, 

["(iws(>r.  .Ttl. 
ol-liclt.  2,1;!. 

.  ali;. 

iickscin.  345, 
;.  .Moiiri'.  22>"), 

'iifk,  1(1.1,  l:i7. 
tusl.  >,I2. 

iiiiiiii.  :!-i.". 
.viiiiiUiiis.  ;!ti. 

WasliliiKtoD, 
61. 


1. 

JOfi. 

nil,    170. 
Irysou,  344. 
'ease,  70. 


70. 

Ox.  Co.,  120. 
),  349. 
243. 
\ 

;5a 


Uiiiil 

V. 

Hunt 

V. 

Hunt 

V. 

Hunt 

V. 

IIllMl 

V- 

Hum 

V. 

HnghoB  V.  U.  Co.,  301,  ,302. 
Hiilbert  V.  K.  Co.,  22X,  2^4. 
Hulctt  V.  Swift  70. 
Hull  V.  U.  Co.,  1^7,  250. 
HulHeukaiiip  v.  K.   Co,,  231. 
Hunio  V.  Tufts.   15. 
Huniphiey  v.  UeeU,    1H,   84,   337. 
Huiuplirc.vM  V.  I'l'iTv,  275,  278. 
lUinucwoll  V.  Tnbor,   i;i7,   102. 
HiinsakiT  v.  Stur^ls,  50. 
Hus  V.  Kcuipf.    lO'.t, 
Hunt  V.  lliiskcll,  .21),  214. 

llolton,  ."7. 

Morris,   122. 

.N'cvcrs,  07,  71. 

K.   Co..  .•{Ill, 

Tlic  Clcvclnnd,  334,  337. 

\\'.vuiaii,  5,  8, 
Huiili'r   V.  I'olts.    125. 
HuiUcr  V.  \Vrit;lit,   211. 
nuiilii);,'il<iii   V.  I  •iiisiiiorc,    14!). 
HiiMtliiKto"   V.  KukHsIi,  ,344. 
Huntress.   'I'lic,    l;t4,   2il(i. 
Hard    v.  West,  K.  22,  23. 
Hurst    V.  Il.vcrs.  S2, 
Hurst    V.  '  olf.v,   55. 
Hurst   V.  U.    Co.,   2,38. 
Hurl    V.  It.   Co.,   2,53. 
HutcliiuKs  V.  I.add,   109. 
Hutfliln«s  V.  n.    Co.,'  270,   272. 
Hutclilns  V.  Mrackctt.  :!:!0. 
Hutchlns  V.  Olcott,  20,  27. 
Hutcldiison   V.  U.   Co.,    1.32,   148,   1,5' 
Hutrhison   v.  K.    Co..   137. 
Hiittou  V.  ,\r!\ftt.  70. 
Hiitton  V.  Osborne,   83, 
H.vatt   V.  Ta.vlor,  81. 
Hvde  V.  Cooksoii,  S. 
Hvdc   V.  Nol)li',    15. 
Hvland   v    IMul,  1,3.  33.  42, 
HVfle   V.     Mi<ll.    Hcrrl'K   Co..   311. 


Hyde  v.  Trent.  Nav.  Co.,  84,  122, 

I. 

Idaho,   TlK",   200. 

III.  Cent.  It.  Co.   V.  Able.    .312. 

III.    Cent.  11.  Co.    i>.  Adams,    137, 

HI2. 
111.  feiit.  U.  Co.  V.  Clayton,    2S5. 
III.  Cent.  It.  Co.   V.  Copeland,   100, 
2SS.    2',t1,    202, 

t).  Cowles,    100. 

V.  <'iitiniiii;liaui, 

V-  Heiears,    340. 

V-  I'IniiiKan,     2!H>. 


Ill 
111 
III 
111 
III 


1,30 

1,30, 
272, 
347. 
100, 


Cint.  It.  Co. 
Cent.  It.  Co. 
Cent.  It.  Co. 
Ciiil.  It.  <'o. 

Cent.  It.  <"(),   V.  Frankeulier 
1.37,    140. 
III.  Cent.  It.  Co.   V.  Frelka,   2,30. 
111.  Cent.  It.  Co.    i».  (iodfrev.   2.30. 
It.  Co.   r.  II;ill,    1,3,5. 
It.  Co.   V.  Handy.    32,5,    .328. 
It.  Co.   V.  Johnson,    10(),   2(>0. 
It.    Co.   V.  Joule,     101,    U«), 


111.  Cent 
111.  Cent 
111.  Cent 
III.    Cent 


137,    140,    140. 


111.  Cent. 
111.  Cent. 
III.  Cent. 
III.  Cent. 
III.  Cent. 
III.  Cent. 
Ill, 


It.  Co. 
It.  Co. 
It.  Co. 
It.  Co. 
It.  Co. 
It, 


V.  JutP,    1,30. 
V.  Latham,    207. 
V.  Mechan,  2t')0. 
V.  .MeClellan,    104. 
V.  Mltehell.    104. 


Co.  I).  .Morri.son,    137,  139, 


Cent,  a,  Co,  V.  Nelson,  206, 


iM  ^/'"^^•.^'*-  «-Pblllip«.  230. 

240.^'2'l8.  ^°-  "•  "'■"^'   ^^^'  ^30, 

111.  cl'nt.  k.Co.  V.  Sim  ton,  .308. 

111.  C'ent.  K.  Co.  v.  Slnhles,   .347. 
1   .  leMl.  It,  (■„.   „.  SuiioM,  i;,-,T,  200 
2(;2;"34S   •   '"■   "•  ^^^""'■""^'•'-■ri57. 

'";',;;.i''',',';,'"'"'t'  >!"!«  c...  v.  u.  co„ 

Indiana  &••,  It.  Co.  v.  Ilndelsou,    227 

Itidianai.ol'is  &c.  u.  Co,  v.  Allen,  137. 

Indianapolis    .Ve.   U.   Co.  v.  Autliony, 

Indianai.olis    ^Ve.     It.    Co.  v.  I'.euver 

ludi.anapolls    &e.     It,    Co.  v.  Itinunl. 

Indianapolis  &e.   It.  Co.  v. "17 

Inilianapolis   _iVe.     It.     Co.  v.  Itiiin-y! 

— )t*.  -I  lit.  3 17. 
Indjaniip(j|i.s   \c.    H.    c,,.   v.  Cox,    1  lo, 

Indianapolis  &c.  It.  Co.  j,.  ii,,|.jf     .._,, 
In.hanaiiolis  \e.  K.  C.   „.  Uor.si,  20(!; 

Ind    iVe.   It.  Co.  v.  JuiUkpu,  204. 

Ini  .   \c.   K,  (•„.   V.  Jurev,  ,S(i. 

IiK  ninapoli.s  ^e.    i{.   Co'.  v.  Kennedy 

'..01.    L^lid. 

IiidiaiiMp.dis  Ac.  K.  Co.  v.  Keelv    341 

IndiiinaiMdis     \e.     it.     Co.  p  V'itzer' 

200.  ' 

Indianapulls   .te.    It.    c,,.   »,.    Iteiumy. 

11  111.  "  ' 

Iinli.ina polls    \r.     It.    Co,  v.  ItiuarU, 

..til,    2(UI. 
Iiiilianii polls   \c.    K.    Co.     v.    ItutUer- 

ford.  .'iiin,  ;!07. 
Indiiinapniis     \e.     IJ.     Co.  v.  Strain, 

102.   i,;'.i, 
Inpills  V.  Itills.   21.   231,  232,   .308 
liifjiills  V.  Mroolis,    127. 
liii-'alls  i^.  Vim    Itokkelou,   70. 
In^'ale  v.  Christie.   ,S4. 
IiiLMllsln'e  ji.  WiiDi),  7(!. 
InfjIebrlKhl   v.  ll.-ininiond,  S. 
In;,'l('de\v  v.  It.    Ci  .,    ;!),■, 
lidialMtaiits  V.  Hall,   1(17. 
InlioM    V.  It.  Co.,  220,  2.''i3. 
IiiKnianie  Co.   v.  SI.   l.ouls  &o.  R.  Co., 

Iiilern.ilioiiiil  iV<'.  It.  Co.  V.  Cock,  200 
Iiiterniilional  i^jc.  It.  Co.    v.    Ilasself, 

Interinitloiinl    &c.    It,    Co.     v.  Miller. 

:{(H(, 

Inleniatlonal  &c.  It.  Co.  v.  Mwdy, 
los. 

Inteniiilional  &c.  R.  Co.  v.  Prince. 
2(10. 

International  iVe.  R.  Co.  v.  Terry 
.347. 

Inlennilional  &c.  R.  Co.  v.  TIsdale. 
204. 

International  &c.  R  Co.  t>  Under- 
wood,  158 

623 


ir- 


u 


W'lii 


V       I 


Ir 


CO 


TAULK   OP   CASES   CITED. 


The  References  are  to  Sections. 


Internatlonnl  &o.   It.   ("o.    v.   Wllkon, 

2(52. 
InvinclldP.  Tlip.   1:17.  1(32.  :i:i.S. 
Iciiil.'.   'I'lir,  272. 
lowu    liiloii   Tcli'iiliiino   Co.   V.  lionru 

of   Kiiiiati/.alliin,   :i2::. 
Irish  V.  K.  «'(!..   102.   11)4,  107. 
IniMs  V.  Kfiilncr,  4n,   -17. 
Iron    U.    <'o.   r.  .Mowry,   :{0S,   .^40. 
Irwin   l».  SpriKj.',   :tn. 
Isiiii<'.>;  V.  it.   <'o..   ^'••«. 
Isiuicsoii   i>.  K.  Co.,    11.">,   IW,  288. 
iKiilpfllii.   Th.'.   l.">4,   \m. 
l.sniiii'lt'.   Tlif,   1S2. 
Isriul   I'.  Cliirk.    2:il,    2,32. 
Ivc.x  I'.  Hiirllry.    20. 
Ivory  V.  iifiiKi'!*.  2:;o. 
Izett  V.  Mouulaiu,    142. 


J. 


JnckuKin  v.  rMririil(;t\  29. 

.Ihi'HUcs   v.  It.   •  'o..   •!I7. 

.linUsoii  |i.  <'iiniiiiiii«.-..   27. 

.Iiickson   V.  Ills.    I'o.,    lis. 

.Iiicksoii   V.  It.    l-o.,   202,  207,   20.S,   ;i2S, 

:i41. 
.Jackson   V.  Uoblnsoii,  42. 
Juiksoiivillf    \i'.    It.    Co.   V.  ChapiM'll, 

2tiO. 
.laioli  i«.  It.  Co.,  :ios. 
,lacol>s  V.  Tint,    27.S,    -jsr,. 
.latolnis  V.  n.   <'...,    i:!7,   248,   304. 
JalU'  V.  (Mnlinal.   74,   SO. 
Jaiii(>s'   Appi'al,  .'i;!. 
.lainisoii    V.  K.    Co.,    2:M. 
Jaiiniy  v.  Slccpi-r,  211. 
.Iar\is  t'.  ItiiKi'rs.   ."2.   ."):{.   .'14. 
.IcM lie's   .Vppt'al,   02.   01,  tit!. 
.h'lTi'ison  Arc.   It.  Co.   V.  I.onan,  .'111. 
.li'lliTsonvillf  A:c.  It.  Co.   i>.  Ck'vclaad, 

202. 
.IclTcrsonvlIlt'    iVe.     U.    Co.   v.  Cotton, 

202. 
.Icfl'i'rsonvillo      It.      Co.   v.  Ilt'tidrlrks, 

2.U.    2.-..!,    .'iOS,    ,-{41. 
.lolTfrsonvillf    iVr.  U.  Co,   v.  I'lirniiilcc, 

2.'>.:. 
Jffrrisoiivillc   A:i'.  U.  Co.    V.  Itiloy,  22S. 

2.:t,   2."i2. 
.Icflfrsdiivillo    »V<'.     U.    Co.    V.  Itogcrs, 

2."«7,    201.    20S.    ;!4S. 
JclT.Tsoiivlll.'   It.   Co.   V.  Whiti-,  22. 
.Icfl'di-ils  V.  <  riinip,    72. 
.Ifiikins   V.  I!a'-on.    Hi.   20,    22,   20. 
Jenkins  v.  Kic-lii'llperncr,    2(1. 
•Icnkiiis  V-  .Moiiow,    10.   ;!;(,   8:!. 
.Iciiklns   V.  It.    Co..    22.'.. 
Jfiicks  V.  Coit'inan.  .S4,  217,   210,  222, 

22:t.  2C.4. 
.IfimiiiKs  V.  It.  Co.,   100,  10!t,   157,  l(i2. 
,Ii'roiiic  i>.  .McCartiT    ."i2. 
Ji'r  line  V.  .'^iiiitti.  2  4,  202. 
,lcsnp  t'.  Cii  V    ISank.   M. 
.Icwctt    V.  It.     Co..    ;!(H),    ,TO8. 
Jcwi'tl   t'.  Wnrri'ii,  ."il,  5.^. 
Jolin   I'.  Hai'oii,    20,'?. 
JobuHou  v.  IlakiT,   8. 

624 


U.    Co.. 

2.'!1,   211, 
liO'.l,  a  15, 


JohnRon  v.  nodgson,  211. 
Jolinson  V.  I''riar,  Kl,   KiU. 
.loiiiiHcni  V.  Iliil,  H-i.  21.V 
Jolinson   {'.  Ilolyokc,    l.*>. 
Jolinson   V.  llniUun,  ,'141. 
Johnson  v.  New    York   Cent 

127. 
Jolinson   V.  It.    Co.,   02,   VlTi, 

212,  '244,  200,  201.  207,  ;iO.S 

;i4I. 
Johnson  v.  Itliliarilson,  7(i,  80, 
Jolinson  V.  Itf.vnoiils,   .'i.'i,  "2. 
Jolins(ni    t>.  Sicar,  (id,  00. 
Johnson    V.  Stone.  272. 
Jolinson    V.  Tel.    Co.,    ,'120. 
Johiisini   V.  Vernon,   02. 
Jolinson   V.  Wells,    ,'147. 
Jolinson   V.  Wiley,    17. 
Jones,  re,  72. 
Jones  V.  I'.iildwln,   70. 
Jones   V.   Itoyce,    ,"iO,S. 
Jones   V-  Itrii;lit.    2.'i2. 
Jones  V.  (iilliiore,   40. 
Jones  V.  Ilatcliell,    i:!,    47. 
Jones  V.  Hawkins.  .'iS. 
Jones   V.  MeN'ell.    I.'i. 
Jones   V.  .\loi;,'aii.    7,    40. 
Jones  V.  I'.'me.  21. 
Jones  V.  I'earN  .    20. 
Jones  V.  I'ltclier,    12.   .84, 
Jones   V.  It.  <  'o..  SI.  22.'i, 
Jones   f.  Slot  t,  .V.l. 
Jones   V.  The  Coile/,,  ,'!17. 
Jones  V.  Trans.    Co.,    2.St(. 
Jones  V.  Tyler.  77. 
Jones  V.  Walker,    It.'tS. 
Jones  V.  Voorhees,    H4.    140.    272. 
Jollet    Iron    Co.  v.  Siiulo    Klre    ijrlclt 

Co.,  (>(i. 
Jordan   v.  Itnehanan,  H;t. 
Jordan   v.  .laines,    2(S. 
.Ionian  v.  I Iniehinson,  8,1. 
Jordan   v-  It.    Co.,   27o,   272,   281, 
.loseph    iVe.     It.     Co.    v.  Wheider. 
Joslin   V-  Cd.    Itapids  Co.,  aoi. 
Joslyn   V.  Kliii;,    .'J'!. 
Jourdan    it.  Iteed.    ;{:t. 
.Iiidson    V.  I':tlieridKe,    27. 
Jmlson  V.  It.   Co.,    101»,    112,   1,17. 

1  l.i. 
Jiliian    V.  Tel.    Co..    ,'117. 
June   v.  It.    Co.,    227. 
Juiiiutu   I'uton,   The,   K'Mi,  ,'i;t8. 


I  no. 

21.'),  202.  .145. 


2S4. 
2(Ki, 


142. 


K. 


Knin  V.  Smith,   2!r.. 

Kaiser  v-  Iloev,    I,"i8. 

Kallinan   v-  I  .   S.   Ex.  Co.,    i:!7,    142. 

.•|,'ts. 
Kansas  city  Trans.  Co     r.     Nidswaii- 

cer,  104. 
KaiisnH  &c.     It.    Co.   v.  Flt/.slniiuons, 

:«)1. 
Kansas  &e.    It.    Co.   v.  Kessler,    2()0, 

208. 
Kftnsas  &e.    U.     Co.   V.  Montclle,  28."), 

288. 


wmm 


[■nt.    U.   (V, 

ir).   'J.'U,  241, 
i(»s,  :',()'.»,  ;ii5, 

I!,  NO. 


Ifirt. 
HI".,  202,  345. 


40.    272. 
I'-ir.-   Brick 


72,  2S1,  2R4. 
^■IllM'ItT,  2(M1. 
.  :J(»1. 


12,   m,   142, 


338. 


o.,  137,  142, 
V.  NcUwan- 
Kltzsliiimons, 
Kosslor,  2(>rt, 
ilontello,  285, 


RnnnnB  &c. 

KuilHilM  inc. 

i:i7. 

KilIiS!is  i\;C 

Kiiiisiis  \<;. 

Kiiiisiis  iSiC. 

Kiiiisiis  iVc 


TABLE   OF   CASES  CITED. 

The  References  are  to  Sections. 


U.  Co.   V. 
It.     Co. 


Morrison,  272. 
V-  Moliolls,     HO, 


V.  I'lilllllu'rt,  .341. 
V.  I'crkliis,   i;!(l, 
V.  I'DllltiT,   311. 
.    V.  Itt'yiioldn,     Hti, 


.    K.   Co.   V.  Siiliiiou,  220. 
U.  Co.   V.  i^iiiipsou,  142. 
K.  Co.    V.  Whlli',  .iOl. 
Co.,   ,3114. 


U.   Co. 
U.   Co. 

It.  (.:o. 

It.     Co 
l;t7,    l.")4,  ir.7,  .3.3H. 

Kiiii.su.s     iVc.    U.     Co.  V.  ItodenlniiiL'li, 
240.  "   • 

Kiiiisiis   iV:< 

KaiisiiH  »Vi' 

Kiiiisas  iVc. 

Kiirh'  i;.  It. 

Kiiiil    V.  Ki'sslcr,    44. 

Kii.v   V.  It.    <()..   2.30. 

Kiiy    V.  Wlicclcr.    100. 

KiiilliiK   j;.  It.    Ci),.   '.^M. 

KiM'^'iii   V.  It.  ( 'o.,  .301. 

Kiflr.V   V.  K.    Co,,   241,    242. 

Kccuiiii    V-  Soiiljiwoilh,    ,330, 

Kcciic    V-  I.i/.ill'ill,  21I.S. 

Kci'iic'.v   V.  K.  Cii,,  111.  ]:;!). 

Ki'illi   V.  .\iiii'ii(lt'.   170. 

Ki'ilii   V.  HIiss.   i;;. 

Kclili   i<.  riiildNini.  'j:;!.  .301 

Ki'lliiiiii   V-  3  lie  Kciisiiinloii, 

Kclliir   V.  Ciii'lii.    20. 

Kclliir   V.  Kliiinils,  -.'A. 

KclliT  r.  It.  Cc,  2:;l.  2.'i3. 

Kcllni  V.  U.  Co.,  211. 

Kcllcpy^'  V.  rn.viii',    ;iiil. 
Kcllii;;^,'   V.  Swci'iic.v,     10,  73, 
Kfll.v,   re,  27. 
K.llv   V.  I'iitclicll,  23. 
Kril.v    V.  It.    Co.,   02. 
Kcisi'.v  V.  Kerry,  .so. 
Ki4iiiii   V.  3'iiyliir.    1.3. 
Ki'iiilicr  V.  i:\.  Co.,  110,  1").", 
KtMiililr    V.  Lull.    100. 
K('iii|i    V-  CiiiiKlilr.\ .  li.-i,  214. 
KiMiip  j>.  I'"iirl(i\v,  ;;;;. 
Kriii|>   V.  Wi'sllinioU,    .'iT 
Kcllllllll    V.   l.iMllliili    If.    ( 
Kcililllll    V.  ShiUcs.   .330. 
Kciiiiiiril  V.  Itiu'ioM.  341 
Kriiimrd   v.  WIUiiiDri',  ; 
Kciiiiccly   V-  .Aslicroll,    I 
V.  It.   Cip..  201 
V.  Rosier.    ."iS. 

It.     <  'o.  V.  Tlioiiias, 


.33.S. 


7S). 


100. 


00,   09. 
.'o.,  .SO. 


'.30. 
:.  21. 
2!  la. 


Cent. 


Keiiiiec|,\ 
Kennedy 
KeiJliedv 

220, 

Keiinev   v.  H.    I  'o..   217. 
Kent    V.  It.     Vi>.,     1(11,    104,     240,    201. 

202.  34.''i. 
Kent    i),  Sliueliiird.   70. 
Keiiri;:    V.   I'.truelsloll,   1.3.3. 
KeiitneUy   V.  11  ('••..  312. 
KeiiHicky    \c.    lirldK"'    Co.  v.  H.    Co., 

2iMI, 
Kdiliieky    \c.    n.    Co.    l>.  T>llls.    .30,S. 
Kenliiekv  &c.  It.  Co.   v.  Tlioiiins,  .304, 

.341. 
Kci.kuk   \c.    I'licket   Co.   V.  True,  22S. 
KeekiiU.    3"lie.   Hill.   .".:;.S. 
Kepperly   v.  Hiinisden.    341. 
Ker  V-  .MoiMilnln.   210,   2."0, 
Kern   V.  De    Ciislro    Co.,    32S. 
Kerr,   re,  .''i2.  uTi. 
Kerr  v.  Liverpool  &c.  Nav.  Co.,  240. 

41 


lyrr  V.  U,  Co.,  280. 

Kerr  y.  Wil|,ui,   l.;ii,  i  ,.3,  144 
Ki'rrlKiiii  V.  U.  (■„.,— .Mt 
Kessler  v.  U.    Co.,    L'.si.s 

vellle  v.  Itronisi.a,   1,3       '      "'  ^^• 
Keyes   v.  Ilovve,    l.->, 
Klljiies   I'.sliile,  71 
Kill'  V.  It.    Co.,    lo,s,    i;!l,    102. 
Kiley   V.  3'el,    C,,..   ;':;() 
Killliiii   V.  Iloirniiiii,  03. 
Kilhiier   y.  It.   Co.,   ^13. 
Klinliall   V.  CMsliinan.   300 
Klndiiill    i:  lljldiv.nii,   70 
Kiiiiliall    I).  I{,    Co.,   ,sl,   .si;,    ];;7 
KiiiK   V.  I'.ales,  ,S,   2'.l. 

Kin;;   i>.  (.r i,     70. 

KiiiK     V.  Indian  iiiclnird    Canal  Co., 

Klni;  V.  It.  Co.,  2ii7,  .'!ill,  3ii2, 

KiiiK,i;.  Uiihanls,    10,   ,s'2.  2U'.\,  21."i 

KiiiK  V.  Slieipjieiil,  Nl,     123,     124     106 
33S.  ' 

Kin;;   v.  3'exas   liankln;;  Co.,  00. 

Kiii«  V.  33ioiiipson.  ,317. 

Kin;;  v.  Wdinliinil;;!',    1,')2. 

KiiiKlionie   v.   I'el.    Co.,    340. 

Kinrhelor   c,  I'riesl.    ;{1. 

Kinney   i\  K,  Co.,  2IS. 

KInnieU  v.  It.   Co.,  .SO. 

Kinsley    v.  11.   Co..  2.S0.  20.3. 

Kirliy   V.  AiUwuH   K\.   Co.,   1,37,   157. 

Kjrliy   V.  It.   Co.,   i;[,S. 

Kiik  V.  l''olsoni,   .",38. 

Kirk   V.  K.   I'o.,  202. 

Kiikland   i>.  lilii>inori'.    117,    HO,    100, 

Kiikland    v.  .Moniu'oniery,   lo, 

Kirllaiid   v-  .Monl;;oinerv,     .31,  HA,    O.l, 
21.".. 

Kissain   v.  .lo'ies.    21. 

Klsleii   V.  Ilililrrlii'ancl.  72.  70. 

Kili-liell   jj,  \  iiii.iilar,    17,  211. 

Killera's  lOs,,  01, 

Khnilier  v.  Am.  Hx.  Co.,  00,  120,  126, 
KM. 

Kleiher  V.  It.  Co.,  30.S. 

Klein   c.  .lewelt,   2.14,   317. 

Kline  v-  H.   Co..  2.".7.  207,  208. 

Klntls  V.  1!.   Co.,  317. 

Knapp  V.  Cnrlls.  4ii,   17. 

Kiiejl    V.  r.   S.   Steam   Co.,  130,   102. 

KnlL'hl    i'.  It,     Co.,   107,   231,  234,  2,H.S, 

201.  ".OS, 
Knoll    1).  r,   ,S,  \e,   S.   S.  Co.,  llr,. 
Knott   V.  I!.  Co,,   nil,  107. 
Knox   c.  Kives.   tl.'i, 
Kno\vl<.s   V.  Iiabney,   200. 
Knowles  t>.  It,   Co.,  14.  .3.3.  201. 
Knouiton  r.  It.  Co.,  1".7.  247. 
KoenlKslieen  J),  Ilainliurj,'  i^i.Tackett 

Co,.  i(;2, 
Koetter  V.  K,   Co.,  200. 
Kobler  V.  Haves.   .S. 
Kolin  V.  I'aekard.  20l, 
Koons  V.  3'el,    <'o.,   322. 
Kopper  V.  Willis,  72.  74. 
Korali  V.  Ottawa.  207, 
Kowiiik'  V.  .Mauley,  20,  22,  29. 
Kromer  v.  Ex.  Co.,  201. 

625 


r 


I  I 


CO 

'JO 

c: 
to 


5: 


::t^> 


TABLE   OF  CASES  CITED. 


The  References  are  to  Sections. 


Krondor  v.  Wolpolt,  HI. 
KrcHiMiowHkl  V.  U.   ('(I.,  .'loo. 
Kroliii  V.  Swt'cncy.  7'J.  HI. 
Kriililcr  V.  KIMnoii,   L!1  t. 
Kilter  V.  K.  Co.,  ltr>.  ^T.'i. 
Kyle  V.  U.  Co.,  100,  103. 


L. 


Ln  n.nrom  »,  K.  <"o.,  SW. 
Iiii  Itonii'  V.  Iimnihiiii,  :t:<. 
liiukiiwiiiina  11.  ("u.  v.  I'henwitli.  ll."), 

l.,iii'<iinlH>  I*.  I''iii'.sliill,  (t:t. 
i.iK'iisli'  V.  I'lpkiii,   t.'i. 
I.ikIiI    v.  It.    «'')..    -■".-. 
hiiilv    I'Ikf.  The,    llMi,  XiH. 

\f.    K.   <'o.    V.  .Miles,  .i\2. 

\c.   K.  Co.    i>.  Sims,  ;i(M!. 

K.    Co..    i;!i.S. 

.Nnv.  <'i).   V.  Cdlllns,  31. 

D.  Tel.    Co.,   310. 

i:v,t.  'JTl,  307,  340. 


Uiil'iiyelle 
Lnl'a.vetle 
l.illltle  i>. 
I.afduri'lie 
I.ii)ri'iuiKe 
l.iiiii  r.  •iiiitlie 
I<iilin;  V-  Collier, 


Llilnl   (>.  Kii'liolil.   7(1,   333. 
Lillie  V    lliiril,    IIS. 

Krie    \e.    U.    Co.   v.  AereH,    21H. 

Krie  *:<•.    U,   Co.    V.  Klx,   'JU. 
Kile     iV;e.     U.     Co.    v.  I'ox.     3»7. 

KrIe    \e.    U.    Co.    r.  Oilkes,    111. 


Shore     iVe.     II.     Co.    v.  Hi'riielt. 


(■ 
Ci 


US  I. 
\c.   U 
li(!S. 
K.  C 


.    V.  iMlvi.x,    1  I'.t. 
r.  I-'osler,  'SM, 


Luke 
I,iik<- 
Lake 
Lake 
1,,'ike 

liol. 
Lake  Shore  iin\  H. 
liHke  Shore  iVe.  U. 

USl,    :iS2, 
Lake  Shore 

11,3,   JlKi. 
Lake  .Shore 
Lake  Shore 

130,   101. 
Lake    Shore    &>'. 

■MS. 
Lake  Shore  &e.  U,  Co. 

•J'J."),   -J.^u,   2(>."i. 
Lake    f^liore    I!.    Co.   v.  S;il/,niaii,    "Jllif. 
Laklii  V.  K.    <'o.,    "J.VJ.    •J'.h;,    -jils,    :i(H». 
i.ainare  i).  London  iVe.   |ioek.>t  Co.,  47. 
Lanili  V.  I'arkinan.  3.'ts. 
Lainh  V.  n.  Co..  40.  11)1.  107.  108,  100, 

ri'.t.  i.-.(i.  ]»i:i,  'jiio.  .•;:!:.'.  :i3.s. 
LiiinlpertMon   v.  Wisdom.    .''iH. 
Lanihelh  v.  It.    i'o..   ;t!'J. 
Lanilnirner  r.  \\'esleoil.    I.'O. 
Lainont    v.  .Niishville  \c.    |{.   ('o.,   120. 
Lamphtier  v.  liuekliiKham,    2!),'>. 
Lamjijey    v.  Seo(t.   .33. 
Laneaster  Co.   Bank  v.  Smith,  1,3,  20, 


f'o.  V.  (Jreenwood, 

V.  .Miller.  341. 

11.  Co.  V.  Terkliis,  80,  l».".. 

U.    Co,   V.  Trent  lee, 

V.      Rosen  wij;. 


30.  ;!:i. 
Laneaster  &e,  U.  Co.  r 
LandsbiTi;  v.  Dlnsinore. 
Landsliercer  it.  T(4.    Co 
Landrean.\   r.  Hell.    2'.t.S. 
Lanilrltian   v.  Stat(>.   204. 
Lane  v.  Atlantic  Works.  341. 
Lane  i>.  Cameron.    1(1.   21. 
Lane  v.  Chadwiek.    IH.'i. 
Lane  v   Cotton.    .3.30. 
Lane  v-  Cror.ilde,  .341. 
l^aue  V.  U.  (.'u.,  201,  268. 

626 


Ulioads,  301. 
330. 
349. 


Lane  v.  Tel.   Co..  340. 
LaiiKdnn  v.  Hnel,   Til. 
LaiiKworlhy  v.  K.    t'o.,    21!5, 

Lanier  v.  YoniiKliI I,  m,  HI. 

Lape  v-  H.   Co.,    137. 
Larlmore  j».  U.   Co.,  230. 
Lary  v.  K.    Co.,    230. 
Latch    0.  It.    Co.,    3111. 
Latham  v-  CMiarlercd    Itaiik,  ,'J2. 
LaiiKher   V.  rainier,    103,    301. 
LauKhllll    1*.  It.     Co.,     111. 
Laurent    v.  \iim,'hn,   3I.'>. 
Laurie    V.  l)oii;;las.     IIMI. 
LavcionI   r.  iMury,    si,    12."i,    1(!0. 
L.iw    V.  liotsl'ord,    11.%. 
Law    V.  Hatcher,    21 1. 
Law    V.  It.    Co..   2."i7.   200. 
Lawreme   v.  Calmoul,   32. 

l).  tircen,    :»)S. 

V.  Ilowaiil.    72,    7H. 


V.  .Ma\wcll,  til,  70. 


t".  .McCaluioiil 
V.  .Met  ircKor. 
i>.  .Miiiturn,   1: 
V.  It.  Co.,   104, 


127.    148. 

;."..  ititi. 

i;'.7.  142,  MS. 


l.awreiKi' 
Lau  rencc 
l.avvicnci 
L.'iw  rence 
Law  remi 
Lawrence 
La  «  reini 

.■;:;o.  .33s. 
Lawreneehurt;  U.  <N».  v.  .MoiilKoniery, 

.iOO. 
Law  son   J>.  .Merrall,    ;!2',( 
Lawson    V.  IE.    Co.,    137, 
La.v   I).  Lawson,   22. 
V-  N'c'ln,    ,'(S, 
r.  French,   24,  2.'>. 
V.  Ilniy.     12. 

j>.  r.  s.,  uis. 

iVc.     It.     Co.  V.  Marirt, 


247. 


Lazier 
Lca.'h 
Leame 
Leary 


Co.,  182. 


Lei 
Lee 
Lei- 
Lee 
Lee 
Lee: 


Leavenworth 

201.    202. 
Le    Itaron  v.  .loslln.   341. 
Le  Harroii  p.  lOawt  Koston  Ferry,  2,34, 

■j:::,.  340. 

Leiier   r.  It.    Co.,   ;!0l. 
Leheaii    l».  <ieu.   Steam.  Nav. 
Lechlenhein    v.  It.    Co.,    12. 
Lecky   v.  .McKerniolt.    20. 
Ll'    (  oiilenr   v.  It.    Co.,    281). 
yard   v.  Ilildiard,  H. 

V.  lialdwin,      13. 

V.  .Marsh,    131». 

V.   It.    Co..    l.!7. 

V.  Tro.v  (ias  Co., 
son   V.  Ilolt.    1.30. 
LeiK'li    V.  Sudth.    113, 
Lcmke  v.  It.   Co..  202. 
Lemon  v.  Chanslcr,   S4,  240,  340. 
Lcmoiit   V.  It.    t!o.,    207. 
Leo   V.  K.  <"o..    111. 
LeoiuM'd  V.  Dnnton.   344. 
Leonard   v.  Ilendrickson,   S.'>. 
Leonard   v.  Tel.    Co.,    317,   321,   34'J. 
Le  Saj;e  i>.  It.  Co.,   127, 
Lesan   V.  It.    Co.,   .311. 
I.eslnsky  D.  (it.   West.   Dispatch.  Co., 

102. 
l>ethl)rldKe  v.  rhilllps.    ;{3. 
Lenw   V-  iMidKeon,   102. 
LeverlnK  1;.  I'lilon    Trans.    &c.    Co., 

137,    140,    lti2.    .3,3H. 
Levy  V.  ISerKeron,  33. 
Levy  V.  Loeb,  OU. 


341. 
110. 


TAin.R   OF   OASEH   flTRn. 


15. 
,  81. 


ik,  W. 

:ioi. 


•J5,   100. 


.    7M. 
,  70. 

TiS. 
127,    US. 
.'i.    Dili. 

i;i7.  142,  148. 

Mi)iitj,'i)iiH'ry, 
247. 


Ho.  V.  Marls, 
n  Forry,  2.'i4, 


lav.  Co.,  182. 
12. 

i8V>. 


240,  340. 


,  sr>. 

I,  ;i21,  349. 


)l8patch.  Co., 

33. 

us.    &c.    Co., 


12'J. 


:r.4,  .'(2:). 


34,-1 


Tho  Itefereucc 

I,(«vy  V.  n.   Co.,  84,   102. 

Levy  V.  Soiilh.   Kx.  Co.,  108,  1(«),  lim 

lil'WiH    V.  •  'lll'ScPW,     I,-). 

IjC'WIh   f.  <IiiiIcii1]i.   (!2,    00. 

Lewis  V.  Illlilicnrk,   72. 

Lt'wiH  i>.  I.iii|\vl(li,    iiil,    1; 

I.owis  V.  .Mr.Mcc,   21. 

liL'wis  r.  .Moll,  02,  0!t. 

LewlH  V.  It.    Co.,    KM,    110 

.347. 
IjCwIn   y.  Slc('iilii),'  Clip  Co. 
liCWls  V.  'I'lii'  .suicivs.s,   Kiiij 
LcwIh  v.  \'iiriiuiii,   (ij. 
I.lclllclilicili    |i.  It.    Co.,   22. 
l.iilOh'   i;.  It.    Co..   2',Mi. 
I.lllcy  V.  I>oiililc(liiy,    20 
Mills  V.  It.    Co.,    212,   2.'.7,    200. 
l.lmlpiir).'iT   V    Wcslcolt,    i;i!l. 
I,liii|iiis  v.  London  (;,.„.  om,  Co.,  21)7 
Mnillcy  V.  It.   (  o.,   :!1.-,. 
liiiiil.'^iiy   V.  <ii'lllln,    2'.i7. 
I,liiil.-<lcy   V.  It.    Co.,   80,   3.38. 
Line   V.  .Mills,   20. 
Mnliclil   j>.  11.   Co.,   2!).''.,   2110. 
I.,liiiii'|j;in   V.  Ilolllns,  ;j(Jl. 
Moil,    'I'lif,    22."). 
Msconil)   V.  It.    Co.,    2,!t. 

Mtciihiiiiif  V.  Willie,    i;;;{. 
Mlllf  V.  liiiriicr.    .'-,-. 

I'.  I)iis('iil)iiv,  2'.»1,  295. 

V-  I'm'Ko,    2111. 

V-  Fiisscll,    1,-,. 

V.  Ilaclicll,    :!iii),    .'ii.', 

V.  It.    Co.,    i;!7,    1  l»!. 

r.  .Scniplc,   liii),   I7t;. 
Lllllcjoliii    V.  .loncs.    84     !t,S 
Mlllcjohn   V.  It.    Co.,   s^T). 
Lllllc  .MiMinl  It.  Co.  V.  Wolniorp,  2W 

.11  "   '/.'"■'?   "•   *■"■  »'•  '''<>'-<''inni.   XiH. 
Mttl..    Ito.'U    &e.    K.    Co.  D.  Cravens, 

Mtt'i(" 

102. 
Ml  lie 

3 19. 
J.ltllc 

241. 

Uttl.'    Rock    ,S;( 

84,    107,   20(1. 
Little     Rock    iVu 

102,  .t;o. 

Litll(>    Itoek     Kc.     n.     Co 

112. 
Little  Rock  &p.   It.  Co.   v.  Miles,  247, 

300. 
Little  Rock  Are.  U.  Co,   V-  R.  Co,  200 
Llltle  Koik  \c.  U.  Co.  V.  Talbot,  1.37 

102,    109,   :<;{-),   XiX. 
Liver,    Alkali    (^o.  v.  Johnson.    84. 
Liverpool    kr.    Steam    Co.  v.  Plioeui.x 

Co.,    ];«i,    I .'{7,    100. 
Live  Yankee,   The,  3;{7. 
Lloyd  V.  General  Iron  Screw  &c.  Co., 

Moyci  V.  R.  Co.,  .341. 
I^oyd  V.  West  Branch  Rank,  .';,  33 
Lohdell  V.  Merchants   Hank,   .18 
I'Obensteln  v.  Pritchett,   31,  33. 


«  are  to  Suctions. 

i::-l:H:;;!,i''„.^';;;':;;"i^v""'  22^.  m. 

j'"Killl    II.  .MjiIIi,.».h'  ;;'"•■■ 
."Kill.    IV  Moi.ile    'InMr.Co.,    118 


Litlle 
Litlle 
Lillle 
Litlie 
Litlle 
Little 


Itoek    &c.    U. 
Rock  &c.   U 
Rock  &C. 


<"o.    V.    Daniels, 
Co.  V.  Davis.  ;!42. 
R.  Co.  V.  Dean,  241, 
Uy.  Co.  V.  Glldewell, 
R.    Co.  v.  Harper, 
V.  Hunter, 


2M,   2!Ki. 
Lofiiii    p.   i',.! 
I.OK^ooil    V.  It 
l.oinloii    ,v 
l.o 
I 
l.ol, 


Co., 

-.    C„ 

It.   c 


';;;;;;  c^i' ,''.,•"  i'- ii-«rtie.t,  2or,. 

"•"lit'    v.   It.    C...    ll,s;    „;„     .„^^ 

I-ooimIs  v.  I'.iir.si.n,    I'.-,  ' 

I.OOIIIJS  ti.  it.    (•„.,    i(,;r  ■ 
•ooinis   V.  Mave,  .-,:;      ' 


V.  C 

LoiiK     Isliiiid 


Coinsloik.'io. 

"    K'lil,    .ij. 

Itlinveiv 

pal  rick,   ju.  ' 

'.op'T    V.  Tel.    C,,.,   ;(-„ 
I.oni    t>.  ,loii(  s,  i;7, 
l-oi-iiiir   V.  Aii.prn.    l'O'' 
Lolsii.nji   p    It    c,     i,„ 
LonKlil,ioii«||   V.  .Mc.Neviii    01 
l.oiiisiiiliii   Mule   '" 
iVc. 


Co.   V.  KltZ- 


Loiiisvill 

341. 
Louisville 
Loiiisville 

1.-.7,   i:;8 

Llpllisville 

102.  lot, 
Lnljlsvlije 
Louisville 
Louisville 

244.  2li:-' 
Loiiisviii( 
Loiiisvilli 

l.'->7. 
Loiiisville  .Vc 
Loiiisvllie  iVc, 
Louisville  \c.    11.    1 
Louisville  \-c.  R.  Co 

i:i7.  1 10,  ;{.•!(■, 
Louisville      \( 

iiei'L'cr,  ;r2s. 

L< 


.Mc 

•  111,.    V.  . 
Ciiii.ij    c 


iVc 


lU-ellllle,  ,'■,2. 

■   V.  .Miirpliy, 

V.  Itiiii.'irii,  298. 
'o.  V.  lirowiiice, 

:'o.  V.  <'aiii|)l)ell, 

V.  Cnse.  .'{l.'i. 
r.  I'iiiiiii«iiii,  9.'. 
Co.    V.  i'ii'iiiili;;, 

V.  (iHirelt,  2.-.0, 
V.  Cilheri,  ]Xi. 

It.  Co.  V.  coetz,  ;!n. 
It.  Co,  V.  iiiuwis,  2ii;t. 


\i\    It.    Co 
.Ve.      It. 
140,    148. 
\c.     It. 

loo. 

.Ve.    R.   Co, 
iVe.  R.  Co. 
\e.       It. 
3114 


R.   C( 
It.    C 


It.    Co 


R. 


V.  Ileii'l.    ;!ll. 
V.     Iledfier,     80, 

Co.   V.  Kiit/en- 


iiei'L'cr,   ;ijs. 
Louisville  ^.c.   R.   Co.  v.  Kelly.  312. 
l,.oiilsvilie    iVe.    It.     Co.   v.  Lockriilj,'e, 

341. 
Louisviiie  &c.   R.   Co.   p.  Miilian,  280, 

287. 
Louisville  &c.   R.  Co.   v.  Mask.  2r,?,. 
Louisville  .V.C.   R.   Co.    v.  Miivblii.  207. 
Louisviiie  &c.  It.  Co.  V.     Mever,     100, 

i:;7,  i.^pii. 


Louisviiie  &c 

287. 
Louisviiie  &c 

I       

I 

i:;7,  1.^.0. 

Louisviiie  &c.  R.  Co.  v.  MelCvvMP,  302 
Louisville     &c.     R.     (,'o.  v-  Mcfiuire, 

202. 
Louisville   \e.     K.     Co.  v.  Oden,   137, 

142.  ir.9,  102. 
Lcuiisville  iVe.    R.   Co.   v.  Drr.   .341. 
Louisviiie  .Ve.    It.   Co.   v.  I'edico.  2.33, 
Louisville  ,S.p.   R.  Co.    V.  SiieiToii,  142. 
Louisville  &i\  R.  Co.  v.  Siiklncs.  307. 
Louisville  ,V:c.   R.  Co.   v.  Slate,  '2(';. 
Louisvillo  &e.  R.  Co.  v.  Weaver,  100. 

202. 

627 


'fl' 


- — r^ 


'f 


iilt 


c: 


3t» 


3.V 


TAl     E   OF    r'ASES   CITED. 

The  UefcrenccH  are  to  Sections. 


&<•.    U,     (;o.  V.  Whltiiiiin,       Mnlion 


('<i.  i>.  Wlls.iii 

«■<>.  V.  Wi.irc. 

•  '".    V.  Ami. 


ItUI. 

■-'.il. 
Dlsl. 


ll'O. 

I'd. 


LoiiIrvIIIo 
I'll.  .(IS. 
LmiNvlll..  \i-.    It. 

l.nlllsN  nil-    tVr.     li. 
I.tillINN  illc    'rriiiis. 
Tfliph.   c.i..   .•(■j:; 
I.ovi'laiul   V.  Itiirkc,     l.'l.'i. 

'.IIMTllIK    V.    Itii.k    .\ll.    Cdlll    «•<!,, 

l,ov<'iiiijc  V.  I  iildii     iVf.     TriuiK. 

:i:ii. 

I.iivftl   t>.  Hiililis,  11",  "JIT. 
l.ovcii  V.  K.  to..  :ti2. 
Lkw   t".  Miirliii,   :;7. 

i-owc  V.  Miiiiih.  r.'.'i,  i:tti. 

I. owe    V    Wiioil.-;.    J(i. 

l-invi'll    tJ.  |{.    Cii..   .■[111. 

Lowell  \\lri'  I'eiiiT  Ci.   V.  Siirynii.  .si 

l.llWl'llllllIX    D.   .luMl'S.     I  Id. 

!,<i\vcr.v    V.  'I'rl.   1  11..  .Mil. 
liowii'iiinri'   V.  Itrri'.v,  i;<K». 
I.o.mI   r.  It.  <  O..  .'li's, 
I.iHiis   V.  I{.   «'"..   -J."!,   'SMI 
1,111  iis  (v   I  iiiiiiiiiiii,   n;,  'ji 

Lll<i'v«(>   (  HI    I  •,,.    D    It     ( ',, 
Klirkcl  Is    i>.  'I'liwiisi 
l.inUi'.v    i'.  ( i:iiiiinii.    Tili. 
I.lllllll'll    IV   l.i'MV  III,    1.".. 
I.iiilluw    I'    Iliii«  nc.  'JI  I. 
I.uiiii   (>.  |)\\  ini-llc,   7  1. 
liiiiiii.v    i;.  I(.   Co.,  \lVJi. 
Liiiit    V    lli'iiwii,    l.'i. 
l.llsU    I'.   I'.rl.ilo.    71. 
I,.mIIiiii   .Mniiiii'li.    riic. 
l,.VHo    11.  .\iw  holil,   .110. 
l.jlo   »».  IliiiUcr,  iW. 
I.viijir  I'    .Mosso|i,  74. 
I.viiili    i>.  Kiiiulil.   .TiO. 
l.y'i.h    i\  It.  Co.,  -J.V.i,  L'ii.s. 
1..*  nil    |>.  K.   I  •>..  .".IIK. 
I..VOI1    V-  Hill.   ~»x. 
I..VOII    i>.  .Mi'lls,   rj,"(. 
I, yon    I'.  Siiiii  11,  7'J. 
l,.Miii-i   I'    M.iilln,  7tl, 
I.yoii.s  t'.  U.  Co.,  .117. 


•Mil.    .M, 


•^iHi,  ;iii.s. 
i:h». 


'■I, 


Ml,    f.'J 


1 1-',  .•i:!7. 


M. 


Mncilor.uiill   V.  n.  Co.,  .111. 

.\liirki  .V    I'.  Til.    Co..   .lilt. 

MinKliii   V   Kni/liT.    III.  47. 

.MmiIUIm    I)    .\'i\v     .Irlsi'V     Sii-nm.     Co., 

i.iii.  1 1.1.  i.v.t.  -^71.  'j;.'.  'jv.!. 

.MccMMilicr  V    I'Mikrr.   '>\.  .'w.   7ii. 
>Ihi' 111  \i'.  It.  Co.   r.  ,li.iiiisiiii,  ;iiM). 
.MiH'i'iiw  V.  !l.  Co.,  .:7- 
.Miiiliiii   p.  CoM'ii.   111.   17. 
.Miiihii  V.  Sill  mill,   l.";i.   l,'ii,   l.'.l. 
.Mm!  Illvof  ii    Co     p    Ciller,  :;7l!. 
.Miiililo\   j-    Itrowii.  '.;i7. 

.M««ee    V.  Seoll.     1"..    '.111. 

M.ii:i:U-  lliiiiiiin.i.il,  Tlio.    si,  I'Jd,  li'S. 
.MllU'hee  V.  K     <o.,    mi,    U\    li;7,    lis. 
lK:t.  isii.  •.'II.'.. 

Mii;.'m:iii    |i.  K     i  'o..   Ill  >. 

.Mii'-'hin  M.  iniisMiore,    i;t;i,   i:tr>,    14_', 

1 1'.i.  ii;j.  :i.!N. 
Miinotiiii  V  n  Co.,  ■.'•.>,''.. 

Miltriilre   V    \i     <'o  .   '.''HI,   ,tOJ. 
Nllllieilll    V    Ciiir,  "-'Ol. 
Mulior  r.  It    i'i>.,  ^47, 

628 


Mnlion  V-  The  ftllvo  Rmnrii,  ific,  33T 

MiilioMey    r.  It.    Co.,   '.'iKi. 

.MiiiuiitiM    V.  K.   Co.,  L'lU. 

JImIi's  v.  Taylor,  .'>l. 

.Milleslle,    Tlie,    l.lil.    I.17,    141,  240. 

.Miiloiiev    V.  Tiift,   121. 

.\lMleiek    V.  It.    Co.,    J!I,S,   ;t48. 

M.illoi-v    V.  CrilTey,  :141. 

Miillorv    l>.  Willis,    S. 

Mallorv  I'.  It.  Co.,  ,si. 

.Maloiie   V.  It.   Co.,   i;i7,   M;t,  240. 

.Maloiie   f.  ItiilihisoM,    'Jl. 

.Maloiiev    V-  S|iiiiier.   77. 

.Miilpas   V.  It.    Co,    ICd. 

.Mallhy    v.  CliajiMiaii,  7!l.  SI, 

.Maiiyalore.  Tlii',  .'1.17.  .'11,'). 

.Miiiim-   I'.  Ill  I  jir.lii,    li'J. 

.M.iiiliasset,    'I'lie,    ."ii7. 

.Maiiluillaii   nil   Co.    (I.  U.   Cu,,   liii). 

.Mauler  y.  Tel.   c,,.,  ;iii,i, 

.Mauley    I'.  It.   Co.,   .'ill. 

.Mann  v.  Ilin  liiinl,    1.17,   140. 

.Maim  V.  Willie   Kiver  \r.  Co     .sr>. 

.Maiiiiey    (I.  Iiiuiaiii.  'J7. 

.Maniiii',','   I).  lloileiilMili.   -Jii,   S2, 

.Maiiniii).'   I'.  .Mil  lure,    ,"i4. 

Mannlim  i'.  Well.s,  7:;,  71,  711. 

.Manville    |>.  Tel.   Co.,  ;il',».  .TJil.  .'Ml). 

.Maples    V.  It.    Co..    J.'.7,   '^iV^. 

.Marliie    Ins.    Co.    v.  K.    Co.,   Jill. 

.Milliner   f.  Siiillli,  .'U,  .'!:i. 

.    It.    Co.    j;     Sliafl'er,    .lIMi. 

Tel.    Co.      .'US. 

I'    llro'.  II.   7.1.   'Jill. 

r.  .la I  lion,  .%J,  lij. 

.  ll.inUs.    17. 

'.  It.  I'o.,  J 11,  JUS. 
«'  It.  I'd.,  Jir).  ji.iT. 
.V.1-,     It.    I  o.   V.  Kirkvvooil, 


Marlon    S 
.Markel   (>. 
.Ma,  aIimiii 
.Markliaiii 
Mainer   if. 
Maioney   1 
.Miiri|iiel  te 
.Mai'iinel  le 

111. 

.Marr  v.  Tel.  Co.,  ;iJo.  ;il!). 
Marsiluiel/   (•    W  riulil.  .'.S. 
.Marsh   r.  lllylh.'.   Hid,  :i.l7. 
.M.irsh    ji.  Til  MS,   S. 
.Marshall    v.  Am.    l)s.   Co.,   JlKI,  Jul. 
.Manila    i>   iileoit.    Kill. 
.Manila,    I'lie.    17". 
.Marlln   v.  .\ni      1:v.    Co,    Inl,    InH. 
.Marllii    |i.  CiiiIiImi  l.soli,    Jl. 
.Mall  III    t>.  rope,  J7. 
.Mai'lin    I),  ileeil,  IIJ. 
.M.I  n  ill    V.  It.    Co..      r.'J,   2.t4. 
.Marlln    (>.  Soiiier\  il'.e  Co.,   lit. 
M.iiN    |i.  .Val.    S     S.    Co,    llij. 
.Mar\    i>.  The    llrilaiiala.    .'i.lS. 
.Marylaiiil    liis.    Co.    p.  l>iilrviii|iii\ 

111. 
.Marylnncl    liis.    Co.   p.  I,o   Hoy,   I'JT, 
.M .IS I  OS   |i.  .\in.   S.   S.   Co.,    lt)0. 
Maslln   i< 
.M.lson    ;• 
Mii-ioii   r 
.\i  i^oii   r.  ' 

.Milsseii;;al 


02, 


217 


Ins.    Co.   p.  1.1 
.\in.    S.    S.    Co 

It  Co,  i.t; 
lirlirus.  JJ 

It     Co  .    Mi, 
Thoinpsoii. 
V.  Tel     I 


ill 


.'fJO. 


:C7. 


Maslers   I'.  Warren. 
Masierson   t'    Mayer. 
Masli'rson   v    II     Co 


;U7. 
,'tt4 
lliKS. 


Mall 


I'.  Ilrouii. 


Muthor  If.  Am.  i;.\.  Co,,  142,  a45. 


I'^' 


wmmm 


TABLE   OF   CASKH   ('[Ti:i). 


The  References  are  to  Sections. 


n),  100,  33T. 

Ml,  240. 
U8. 

lit,  210. 

SI. 

i'ii.,  11(8. 


14(1. 

.  r.o   .S5. 
•ji;,  s2. 

,  70. 
:!j(i,  :!io. 

>.,  2iil. 

iin'tT,  .•SIMS. 

204. 
02. 

20S. 
,  21 17. 
V.  Kirkv.odil, 

lit. 


.,   2IKI,  2iil. 


nil,  Kin. 
Jl. 


..  f.4. 
Iii2. 

:v.\s. 
ulr.vinpio,   02, 

>   U..V,   127. 


S'.',  .'(27. 
.120. 

I 

IS. 

I. 

142,  345. 


Malhows  t».  Splliirs,  20. 
Mntliliis  V.  Scllitrs,   27. 
WallilH  V.  'I'l'l.   Co.,  ;il'.l. 
WaltliicsHcti  iVi'.  Co,   D.  Ciisl, 


182. 


M:iIIIniiii   i;.  K.    Co.,    i;s7,   :^■^^ 
Miiiirllz  V.  U.   Co,  2Hi. 
Maiir.v   !>.  Coylc,  .;.!,  .'iS, 
Miiiir.v   1-.  'I'liliiiiid;,'!'.   'SW. 
MiivliiK  V.  'I'oiM,   i:iO. 
Maxufll   t!.  Iliisoii,   11'. 
Maxwell   V.  Iloiisloii,  ll»,  22. 
Mmxui'II  j).  m<ii\().v.  ;i;!o. 

Ma.v   I'.  liiilM'oik,    l"4S. 

Mm.v   v.  Iliiiis HI.   .'{n. 

Ma.v   V.  Iliiivcy,  2S. 

Ma.v   |).  'I'lic    I'ow  haltaii.   I.'i7. 

Mii.vliiii   1-.  I!.  Co.,  SI),  ii:j. 

Ma.v   i>.  Sharii,  ."iS. 

Ma.viiiiril   V-  Itiuk.   I.'i. 

Ma.v  <Jii(iii.  'I'hc,   l:t7,  14(),  142, 

Mii.vo  (',  .\\ir'.v.  01. 

Ma.vo   (•.  Mii.vo,   ,"i8. 

Ma.vo  V.  It.  Co.,  ;mi. 

Mn.vor  V.  Ilowanl,  21. 

Ma.Mii-  i>    .Mil  iii-.v,  .'!ol. 

Mc.Xlisicr   V.  |{.  Co..   i;n,   l!»(l 

M<'.\M.Mi   r.  TrI.  Co.,  :i.-.o. 

Mc.Vinlnw   v   'I'i'l.  Co..  ;;I7. 

Mi'.\ih1iimv    ji.   Whllloik,  'Jill. 

Ml  .Viilmi-  II    Si'ars,   A^.  ijl,  \w, 

Mi'IlciiUi   V.  K.  Co.,   i:;,".,   l.'i.s. 

Mel  iidcil  V    i;,  K.    Co  .    .•((11. 

Mi-Ciill    t>    lildili,    122. 

Mi'<'all   V.  Cli!iiiil>iTl,ilii.  2'.1.'>. 

Mi'Calla   V.  Clark,  tld.  01. 

Mci  'iMiii  V.  I'.ilil.v,    1117 

MiC.'iw   1).  KJMil'iicl.  4.1. 

MrC.iiiiiv   V    i;.  Co.,   (7.  in;i,  107,  2i>2. 

MiCmiIIi.v   v.  I'orllaml 

Mi'(  nrlli.v   V    Woll'c,  4.">. 

MiCirlli.v   V    Voi)ii(S.    24 

Mit'aiilii.v    I'.  l»avi(lsoii, 

Mc'larv    v.  I!.   Co.,    f.M 


.  1"t;i, 
lid  I. 


Ill, 


2:!l,  ,'^40. 
121. 


Mil'lciiii;;liaii    i>.  Kimk 

McClm'c   It.  <  'ox,    100. 

H''('liiic   D.  It    Co.,    ICJ,  241,  241,   44,'). 

^l(•Ch||•l•   iv  i;ii'l,Mr<lsoii,  Kf, 

MfC|iin-<   I-    llatiiiiioriO.  ,s;!,  84 

McColl    |i    •|(l,    Co  ,    ;i|!». 

McColliiIll    r.  roi'lrr,     ID. 

M    Cnllllli.    J..   I!     Co  .  •j.'i. 

Mr'  '01111111    |i.  Mawvcll,    LI. 

MoConiii'll   |i    if.  Co.,   tm. 

McC(,c,|   (.   Til.    <'o..   ;t17. 

Mi-Coi  iiiaric    J'    It    Co.,  272,  2.S.S. 

McCo.v   i».  .Mi'Kowaii.  '.117. 

McCoy   ,1.  It.    Co.,  Hi;,    1:{7, 

MiCoy  J).  Trans,    Co.,    1.'I7,    140.    MS. 

MrCiilloin   V.  Torti-r.    17. 
M<Ciil|,,iii.'li   V    .Mi'IioiPiM,  200. 
MrHaiili.l   t>.  It,   Co..   l:i7. 
Mi'Daiilils  |i.  l^'lowiT     itrook     Maiifir. 

Co..    ,"(1, 

llilmiiiols  V.  Uolilnsoii,  71,  70,  78,  8*2, 

.•i:!2.  :!:i.'!, 
Mclioiiiilil   V    Ili'Mtii'll,  27, 
Mi'T>oi,iil(l   }i,  KilniTloii,  70,  77, 
McIioTuiil   V.  U.    Co,,    104,    202 

207,  313,  347. 


234. 


MH>owi.||  V.  Clil.uso  SU..-I  Works,  02 

Mi'liiin'..!.  V.  H.  Co,,  Kit,  ill    J),'-, 
Me  •-  roy    V.  It.   Co.,  2.fl,  l':{,{,  2ii,1 
M'l-.luimi   V.  It,   Co,.  .1.),', 
.Mil.Mtii.    11,  Slriiiii.    c,  .    2m     ",«> 
•Mr    ,v,.|.,s    f,    'li,,,   ,s„||;,„|,„„      ,'.,    ,,V 

> '■,.";.;,   V.  It.  Co..  I'lC,  2011 
.Mil;ii|(l..|i  ti.  K     C 

1  •'"':!.    1.".",    ICii. 
Mil'arliiiiil  D.  Srnill!,    1,", 
Mi-l''arliiii,|   V.  WIwiLt,   27 
.M<<.aw  V.  Offiii,  Ins.  (•„ 
Mi'<i('i'  v.  Hasl.    HI 
.\liCii.   V.  It.   Co.,  200 
Mi-<;ill  V.  .MoiHUi.,  1.-,. 
Mi-'!ill   V.  llnWMinl,  'li'li   272 
.MrCiilli    V.  r.lllliT,      J, 
.M<<iinij|,><s   II,  It,    Co,,   211,  2tlS    2flO 
.Mil ;  I  nil, y   r.  It,   Co,.  2il'.i, 
.MiCloiii    I).  Ili'inli'.siiii,  2."iO 
.Mil  liiiw   D.  1!.  Co..   12i; 
.MiCrcuor  V.  Kilu'orc,  HI.  170,  .345. 
.Mi<;iilri'  V.  (Jraiii,  ;iiki    ;i(ii 
,Millinry   v.  It,    i' 
.Mil  ii'yri'  V-  <  arvi-r, 
Miliilyri.  |i.  It.   C 
.MiKiiy   V.  ll.nnliliM 
MiKay  v.  It.  Co,.  i(i2 


294. 


l;i7.    142,    148, 


■21.'-.. 
21:!. 


12:1 
.  '20. 

r.i, 
.'!:!. 
214. 


M2. 


2s',l, 
mI,    2'.i7. 
2!l.S 


.•!0S 

2:!i 


r!47. 
•^40. 


.MiKi'i'  V-  Owi'ii.  2'i 
Mi'Kiii'ji.  V    M.-I.iM 
-MrKcoli    II,  It.    Co., 
.Mi'Kirii  V.    It,  Co., 
Mi'KiliOi'n   V    l!:ikcis,  lii. 
.Mi'Kllililii    |i,  I'i'i|<.  2l.'t. 
MiHIiiilili.  ('.  K.  Co.,  227, 
MrKlnli'y   v.  It.    Co.,    2I1S. 
Mi'Kliiiii'V  V.  .Ii'init,  '2I1J 
.MoKliiiii'V   ?.,  ,\..||.   2.'tl. 

.MiK'liii V.  .Mi'IIwiin, 

Ml  Koiii-  t>.  I!.   Co..  2:!i», 
.Mi-I.,iin  f.  I  Im  I,    1."), 
.Mi-l..-iiM    (-    (Iii.V.-,:iii.  20, 
Mil-iinulilin  jt,  ■  orrv,  ;!i7. 
MiI,a;iL'lilln   v.  1!,  Co,,  .".ll8. 
M'I.ani.'liliii   V.  Wiilli".   I.'".. 
Mil-i  nil   V.  Unrtiiuik.  '2!!,'!,  .'140. 
.Mi-I,i.:in    V.  W.'illii'i'.  ,"1.  n2,  01.  02 
Mi-M.ilioii   }).  It    <'o..  211. 
MiMiiiiiis  ti.  Crlilci'll.  2'.17 
Mi-Miiinis  V-  It.  Co..  ,i?(i.  inO 
.MiMill.in   ?'.  Tf.     Co..     ill*      V.'~     H** 

II'!.  1)7.  MS,  I.'-,-,  'Jin   '2112,  :ar,      ' 

Mi-Valih  V  I.oi'kliiirt.  :VA. 
M'Vi'll    |i.  lirooks.   21,  42 
M"\i.ll  V  Ti'iiHi  Nut.  It'..,  r.7 
Ml  rMiIilcii  V.  It.   Co..  '■,{!,  2.12,  2XS 
M''(,>ii,iili.  }),  It.  (^o,.  2'27. 
.Mi<,»iii'i'ii  V   It    Co  .  220, 
M''liiiill;iii   V.  It.    Co.,    ;141. 
Milf.io  r.  It.    Co..   208 
Mii.'Vc'urli  V   n    Co..  l:tl. 
M'Vi'i'ty  ?..  n.  Co,,  22.'>. 
Mi'.'iit   r   HiiiiM,  ri. 
M.iHiv   r.  Hi'Mil.  20. 
Mo.'ini  r,  IToiJinul.  2!>r,, 
Mf'i'linnli's'  liMiik  v.  Conlon, 
Mfdbury  v.  U.   Co,,  .'!4r>, 

6^9 


.13. 


iir 


TABLE   OF   CASKS   <ITi:i>. 


The  References  arc  to  Sections. 


Ill 


^  1 


4i- 

CO 


MPdlln  V.  Wllkrrson,   17. 

Mcfsfl  V-  It.  (■<...  .iml.  ;',(i7. 

Mi-lirliiii'U   V.  LlvcriMiol    \('.    Co.,    V>2, 

IM. 
Mi'lfT   V.  n.   V.O.,   -S'A,  ;i32,  23r>,  340. 
Ml  ill   i;.  West,  Xi. 
.Mcllur  V.  U.   fi).,  22r). 
.Mi'iii|iliis  &c.   l{.  Co.    V.  ReuHon,  2.11, 

Mi'iiipliis  Arc.   II.  *'ii.   V.  Cliiistliic,  2'J.'i. 
.\ii'iii|iliis    iV)'.    It.    Co.,     V.    llot'cliiicr, 

'J.'X>. 
MiMiiplils  &c.  a.  Co.   V.  Hoilowny.  Ill, 

l.^K. 
.M«.||||)lliH  *:<'.  U.  Co.    V.  .lolu'S.  102. 
Mcliipliis  \.'.  It.  Co.    V.  .MfCool,  ;tlO. 
.Mclii|>liis    \c.    it.      C'o.    V.  South.      Kx. 

Co..  '.i.">. 
.Mciii|ilils  A:c.  It.  t"o.    V.  Striiis'i'llcw, 

2.">4.  2!C.. 
MciniihlH    \<'.    U.    Co.      V.    Whitlli'lil, 

2;!4,  ^.■.:i,  :U7. 
.Mciiiiclio   I'.  Ward.  .s'.»,  !M).  (12. 
MiMicr   V    1!    •'<>..   i:t'.».   l'."<». 
.Mciit/.cr  V   Tfl.   Co.,   .•US,  .TiO.  .T'.l. 
.Mcii/.rll    l».  K.  Co..   1".I7. 
Mcntiiililc    Ills.    Co.     V.    Cliilsc.    118, 

i:;.s. 
MiTiliaiils'  Hank   v.  I.ivlii;.'Stoii.    Wt. 
.MiTcliiiiits'  Hank    V-   i'lKimiisoii.  (!2. 
MtTcliaiitw"    Mill.    Ills.    Co.     V.    <liiisi', 

i:i'.t. 
.Mi'irliants"  Nat.  lUi.  v.  Carharl.    XVl. 
.MiTchaiits'    .Nat.    Ifk.    v.   Ciilliiiarlln. 

M.'icliaiits'  Nut.  Ilk.   V-  Hall.   .^.'i. 
Mcrcliaiils'  .Vc.  'riiiiis.  Co.    v.    Itlooh. 

SI,  i(Nt,  i;!7,  MS,  ;{:{7. 
.Mcri'lianis'  <J»r.  Trans.  Co.    v-  Itollcs, 

Ills,    Krti, 
MtTi-liaiits'   iVi-.     Trans.    Co.   v-  Cnru- 

forth,  i:i7.  l.-)ti,  li;2. 
Mcrcli.    &<■.    Trans.    Co.     p.    Ilallock, 

2117. 
.MiTcliaiils"  iVi-.   Trans.    Co.    v.   Jacsl- 

liiK,   H",  us.  1  lii. 
Mi'ii'lianls'   »v<'.   Trans.   Co.    v     Kaliu. 

MIA.    127. 
.\liT''iants'  \<'.  Trans.  Co.   v.  Lc.vsor, 

nil,    1  is.    1  111,    l.-.l 
MiM'clianis'    iVi'.    Trans.    Co.     v-    .M»'r- 

rlaiii.   ISC.  2ik;. 
MiM-iliaiils'  tii\  Trans.  Co.    v.  .Mooro. 

ln:(. 
McrrlinntH'  &c.  Trans.  Co.    t>.   Stor.v. 

40 
Mi-rcliHiits'  At.   Trans.   Co.    v.   Tlicll- 

har.   i:!7.  MM. 
.Mi'i'iliants"      Wlinrfltoat       Assn.       v 

Wood.  4S. 
.Mi-r.diili   V.  Mcl(.'li.    211. 
Mcrrliun   v.  It    Co..  Jl.!.  1H>. 
.Mi'rrli-k  V-  Itraliiard.    '-'!_' 
Mi-rrick   t>.  CiTialii  nusluls  of  Wheat. 

HIT. 
Mcrrlik  v   WcbsttT.  2ir.. 
McrrKli-ld   f.  Ilak.'r.   W2.  W.  (!l,   70. 
M.-rrlll  V.  Ar.'.v.    lt»l. 
Merrill   ».  C>-iinell.  270.  271,  272. 
Merrill  v.  MaiupUfU.    ^141. 

630 


Merrill  V.  IIouKliton,    GO. 
.Merrill,   re,  2;!o, 
.Merrill  V-  It.   Co.,  227. 
Merrill   I'.  Tel.   Co..  ;i4!t. 
.Merrill    V.  Cla^lioni.  70. 
.Merrill    V.  i:arle.    I2:i. 
.Merrill   v-  .lolinsoii.   S. 
.Merslioii    v-  Ilalieiisock,  8,'(,  122,   12.1 
.Merwin   D.  Iiiiller,  !t,"i. 
Messenuor    j>.  I{.   Co..  ill,  <);;. 
.Metcalfe    V    Mess,    70. 
.Mclro|ioliiiiii    \c,    U.    ('(I.    p.    .Iloor* 
22.''>.    20!  t.  ' 

.Met7.   V.  It.    Co.,  272.  2!l.",  2!«i. 
Melzner  v.  I'raiikliii    Itk..  ;i.l. 
Meyer    V.   Il.lindi'irs  V.\.  Co.,  li)',),  139 
.Meyer  v.  .laeolis.  20.  ' 

.Meyer   v.  I.enieke,   ls.1. 
Mever   V.  I'eek,    107,    177. 
Meyer  v.  It.    Co.,    202,   ;10|,   ;!40. 
.Meyerslclii    II.  r.iirlier.    ."1. 
.Michael   V-  Slanlon.    .'KHi. 
Michaels   V.  It.  Co.    101.  110,  12;t,  124. 

120. 
Mlchl).'an  .Ve.  It.  Co.    v.  Ttoyd,    ir.(i. 
.\Il<iii;.Mii  »Ve.  U.  I'o.    V.  Iliirniu^,    12B. 
.Mi'himin  .\.c.  u.  Co.   i;.  ('arrow,  .'i.  271, 

272,  27.-..  27H. 
.Mich.  \e,  li.  Co.    V.  Carter.   :',l."i. 
.Mlcii.  \-c.  It.  Co.  t>.  Day,  2imi,  •jiii,  •jn.v 
.MIeli.  \c.  K.  Co.    V    Male,      Ion,      1:17 

I4:i.   1.".4.   101. 
Mich.  .Vc.  U.  Co.    p    llenloi'..    I.!',,    ;:19, 

102,  210. 
Mich.  \i'.    It.   Co.    V.  I.aiitz,  341. 

It.  Co.   V.  .McDonoiiK'h,  80, 


Mich.    .V< 

',•1,   i:iO 

Mich.   \e 

MIcli.  \c 

Mich.  \e 
Midi.  .Vc 
Mi.li    .V< 


It.  Co.    r.  Meyres,  2S,'i. 

It.  Co.   V.  My  lick.  SO. 

I!.  Co.    V    Oclini.   271.  272. 

It.  C...    p    S.liulz,   112. 

It.  Co.   r   w.ini,  i::7 

Middlesex    Kaiik    v    Miiinl.    o::. 
Mldillelon    tv  llaywiiid.   21:!. 

Mildleloll     p.   Stone.     S, 

Midland  It    Co     r.  liioniley,   XV2. 

Mierson    tv  llojie.    2ii!t. 

Miles    V.  (iiMle.    :102. 

.Miles    V    Walliier,  (17. 

Miletus.    The.    100. 

Mllford    r.  Wesley,   SI. 

.Millard   v    H    lo.  27S. 

Miller  p.  Adsit,    1,-.. 

Miller  V.  Cetivsliiiriir   Pntik,  .'i.S. 

Miller  p.  Mar^l.in.  20,  27. 

Miller   p.  Niiv    Co.     I'll 

Miller    p.   I'eeples.   7S. 

Miller   p.  reiidlelon,  S4. 

Miller   P.  It.   I'o..   1S2.   :!01.  nOV,  .340. 

>nili'r  p.  Steam  Nav.  Co.,  I2i!. 

Millikell    p.   l»|.|lti|l.   02. 

Mllllnuin   p.  It    Co  .  20!i 
Mlllio   p.  Cetlysli-iry;  Hank.  5a 
Mllinan    p.  It.    (  "  .   2.'"i.'i. 
.Milloii   p.  Sallsliiirv.    42. 
.Mills   p.  Ashe,  Hi 
.Mills   p.  It.  Co.,   104.  202, 
MIlis  p.  Stewart,  7<'i 
Mlltlinore   p.  a.  '."o  ,   120. 


TABLE    OF    CASES   CITED. 


The  References  arc  to  Sections. 


3.  122.  l'J3. 

D2. 

V.    Jloure, 
2!Wt. 
'".,  lit!),  130. 


I,  ;i4o. 


10,  123, 

124, 

yd,    iri( 

IIMW.  .".. 

12(5. 
271, 

r,  ;u.-,. 
ni'.t, 

2nr>. 
i:t7. 

I'.,  t.i-,. 

;;i9, 

?..  -MX. 

,  NO, 

I'S,  -jss. 
•k.  S(i. 

.  •--ri.  2 

z.  112. 

72. 

1;f. 

y,   332. 


)k,  r.8. 


3nv,  340. 
122. 


k,  58. 


Milton  V.  Snllsliury,  42. 

Mlhviiukco  iVc.  K.  Ci).   i;.  Arinn,  34S. 

Mllwiiuki't'  iVc.   U.  Co.   V.  IMiiiioy,  348. 

MUMiukft' A;c.  11.  C(p.   J),  Iluiilfi',     ;t41. 

Mil  wiiiikcf  \i'.   It.  Co.    V.  Sinilli,  Itxi. 

.Milwaukee    ITelh',    'I'lie,     l(j(i. 

Miiiii  V-  I.  iV   V.   Klorlo  S.  S.  Co.,  17<!. 

Minor   V.  K.  Co.,  ;{1,  3:1. 

.Minor  V.  Siaples,   77. 

.\liiiler  V.  K.    Co.,    11"),   27S,   2H4.   2!t7, 

.\li^<.sis.>^ill|)l    iVc    K.    Co.     V.    Kemiedv, 

•J7ii,  1:72. 
.Missouri  Funiiico  Co.   v.  AhciiJ,  341. 
.Missouri,  The    v.    Webb,   170. 
Missouri    Tac.    U.    Co.,    see   ilo.    I'ae. 

U.   Co. 
.\lisier  V.  U.  Co.,  300. 
.Miletiell   V.  Crassweller, 
Mil. -hell   V    K.N..  C,,..   170. 
Mitchell   V.  Marker,   .'C'l 
Mitihell    V.  Koliens,   70. 
.Milcliell    V.  K.   C(..,   li.V. 
.Milellell    V.  Woods,   Mi 

le.  <o.    V.  A-heraft.  :!17. 

K.  Co.    f.  Copelaiiil,  lOtj. 
K.    Co.    V.  llelisliaw,   341. 

It.    Co.    V.  Hopkins, 

142.    2t.S,    •J71. 
It.  »'o.  V-  .larlioe,    i;'.7 
K.  Co.   V-  .luri  •.    I."i4. 
K.  <'o.   V.  MiA.llmr,      Ull. 


•hell    V. 
\r. 

•  \e. 
■   .Ve. 

•  \e. 

i;i7, 

'  \e. 
'  \e. 


328. 

3;i,s. 


2.->4,   340,  .311, 


.Molille 
.Miiliili 
.Meblli 
.Mohili 

12:!, 
.Muhllc 
Moliilt 
.Mobik 

IJ.Vl,  '.^Oli. 
Mul.lle   \c.   U.    C( 
Mobile  \e.  It.  Co. 
.Mobile   iVi'.  U.  <'o. 

::o'_>. 
M<ibile  &e.  It.  Co. 

lie. 

.Mulfat   V.  VaiiPorcM.   ."2. 
Mohawk  The,   122,  llKI,  213. 
Moju-   I'.  It.  Co..  201;. 
Mollle    .Mohl.T.   The,   Hill,  ,338. 
.Mullio    1>.  I'reiii'h,  S. 
Muulaiia   The.   l.iT.  li'.2.  lt!i!,  .338. 
.Moiileath    V.  Itlssell.   3.1. 

V.  Kvatis.    -JO. 

V.  The  Abbey  I'ratt. 

(iasli^'hl    Co.    V.    U. 


104, 


:.".s. 


I.  V.  MeKean,  :!I7. 
V.  Mayi's.    li'.M. 
V.  I'rewett,  201. 

V.  Weiiier,  1,37,  14o, 


Miiiilnoiiiery 
.MnliC^oiiiery 
■MoiilKomerv 

l.\ 
.\Iiiiil;;oliierv     i.V:e.      It. 

•j:!4,    347. 
.MoiitKoiuerv  iV:<'.    it.   Co. 

l.-,-|.    11)2.  ■ 
.MoiitUouiiTy    &e.    U.    C 

103. 
Mnoer.s  t'.  I.nrry,   14,  42 


170. 

'o.. 


V.  Itorlu;;. 
IMmoiuls, 


o.     t».    Slooro, 


Mcu.ll 

V.  It.   Co..  2!I7. 

.Miiore 

V.  K\  1.    I.'IO. 

Moore 

V.  r.v.Mis.    Wl.   3.3.^. 

Moo|-<> 

V.  Ilelil."-.    10.3.    1(«>. 

Moore 

V.  lIltclK  oek.  2rt,  27. 

■Moore 

V.  llolhiiil.  s. 

.Mooi-e 

p.  I.awreii  'e.  344. 

Moore 

1).  Mayor.  40. 

Moore 

V.  It.    <'o..    122.    231,    21t7, 

.341. 

Moore 

V.  Saiiboriie.  2'.>7.   301. 

Moore 

V.  Shreveport,   .341. 

Moore 

V.  Stale.  7'. 

Moore 

V.  The   Kveiil-ic  Star,  271 

Moost 

:-.  Mii.vor.  47 

Mo.  I  uc.  U.  Co.  V.  UunieH,   190. 

20«. 


It. 
K. 


-^lo.  I'ae.  It.  Co 
•\lo.  I'ae.  It.  c„ 
Mo.  I'ae.  1;.  (■„ 
l.'i7,  \:,H,  1;,;), 
•Mo.  i'ae.  It.  (.  II 
Mo.  I'll, 

Mo.     I'JK 

.\lo.  I'ae 
•Mo.  I'ae 

l.-p.S. 
Mo.  I'ae.  It 

I'ai-.  It 

I'ae.  It 

I'a.'.  K 

I'ae.  It 

I'ae.  It 

I'ae 

I'.K 

I'ae 
I'a<- 
I'ae 


V.  liopson,  intl. 
I',  la  1,1  Well,  l,i2. 
-   "irier.     H(i 


V.  Ci 


1.54, 


,  V.  I'lilldress,  l.^S 
\'>-  V  <  orinvall,  l.-,» 
«  o.   V.  S,oit,   l,-,.s. 

;.  '  o.  V.  1  iiKan, 
!'•  '  o.  V.  UarrlH, 


1.10,   i,'-,K. 
>^,     137, 


.M., 

.\1, 

.\1, 

M. 

.M.I 

.M. 

M.». 

Mo. 

.Mo. 

.M,i 

.\l..r. 


t/i.  V.  n,.l,.oud),  2m. 


( 

Co. 
Co. 
C.i. 


It, 


"■  'v.y.  •.:i7. 

V-  -M.-Callv,  341. 

V.  .\evill,  rj'.i. 

V.  It.   Co.,    1,1,-,, 

I".  ltiis.>."||,   .'ny. 

V.  Uyaji,  io:t. 

It.   Co.    V.  S.'olt.    l.-,,s. 
iV;.'.  11.  (  .1.    I..  \Vi..iver,  347 
\\-  *  o.  V.  Van  'evi'iiier,  137 
>'.  *  o.  v.  \»mK,   103. 
liia.l   i...  lir.iwn,   47. 

•Moiei   V.  .Miss.    Ins.    Co.,  307 

.M.ir.'s  V.  C.iiiliaiii,    .'•,7. 

.M.iruau   I'.  r.iiii„'..  c,,.,  ;!41 

M.)if.aii  V.  Coiii.'.|.ni,   1:7. 

.M.>r;;;i;i  p.  Iiihiij,.,    j-j.^.^   o(,j 

.Morgan   11.  Uavev,  7ii.  ,S1 

M.iriarly   jj.  I'.i-ooiis.   73. 

.M..rhii-ly  v.  Ibi.ri.li.u's   i;\     loi 

.M..rri,<s..y  v.  V  it:t,'ins  K,.n-v  Co. 

.Morley  V.  Attuibi.roiiuli,  tit;. 

.MoriMiiL'  .Mail.  'l'l,i>.  piii. 

.M.irris  1).  I'al 


109, 
2;U. 


.\|. Ill-is  r.  N.M'rl 
.Moriis  t'.  It.  C 
M.irris.  Canal  t 
.M.irrls.  c.iinil  t 
M..rrls,  .V...  It.  I 
M.iriis.iii  t'.  liavis,  12i; 
.Morils.iii  V.  Construction 


,s.t. 

.">,  .302. 
V.  I'lsher, 

V-   l.l'Wis, 

V-  .\yres. 


1(12. 
.Monison 

12. 
.M.irrisoii 
.Morn>.iii 
M..  s,.  V. 
.M.a  <. 

.M..!.. 


•201. 
Co., 
fJenoral  Steam  Nav. 


'2i)2. 
147, 
<o.. 


ff.  It.  Co.,  ,'«K),  .".08,  314 
V   Ti-.ins.  c.i.,   l;t7. 
iraut'or.l.   2!i. 

I'.  It.  Co..  10.!.  ;U7. 

t'.  Sliii.,  .s!.    i:iti. 


;  1 1,  2113. 


sli.T  V.  S.oith.  T.s.  Co 
I'S  r.  .Nonis,    ll!l. 
}'   It.    ('.)..    S'.l.    Ir;, 


100,  140. 

,  n2.  110, 


.Morsf    V-  Slone, 

Mosher  V.  It 

.M 

.M 

.M.isi's  ?v  It.    ( 

137,  141,  14'2,  14t!,  20i. 
M.)ss  f.  lii'iillle,  :<]. 
^los.s  17.  H.'ttis,  .s:'. 
•M..:-  V.  It.   Co..  'J,S7. 
.Mott   c    I'eltl;.  .'.,  'J!). 
M.pnit.)n  i..  lirei'Mi'.   211. 
Moiilton   I'.  I'hiliips,  47. 
M.mlloii   t'   1!.  Co.,  i:'.7.  14'2. 
.M.ii:nl  \irniiii   (i.  I  •usoin-hi'tt,  341 
MouiTS    V-  I'elll.'I-S.     711, 
M..wrv   V-  Tel,  C.I,.  .•till. 
.Mo\laii  V.  It,   Co,  30s. 
Mii.l.lle  V.  SIrl.!.'.   1'J.-.. 
MiLiu'elt  V.  Sleamb.  Co..  28!) 
Miii;u'rld«e  v.  Kveleth.  ir>. 
Miii'lhansen   v   It.  Co..  ■22,1.  200. 
Mueller  v.  K.  Co..  Ii8. 

631 


T 


■lapi 


ii 


(■ 


m\' 


*  i 


o 

'JO 

c: 


r  • 


TABLE   OP   CASES   CITED. 


The  Beferences  are  to  Sections. 


Muldoon  V.  R.  Co..  240,  248. 

Muldowucy  v.  U.  Co..  a04,  341,  347. 

MulUiido  V.  li.  Co.,  259. 

Mullfii  V.  .Morris,  .'■.8. 

Mullor  i;.  I'oudir,  ."il. 

MulliK'iiu  V.  U.  Co.,  101,  100,  137,  147, 

148. 
Multiniore  v.  R.  Co.,  l.^'l. 
Mmiii  V.  Haki-r,  VMi,  133,  154. 
Muiiu  V.  I'eoplt',  47. 
Mumi   V.  K.  Co.,  'J.:M. 
Murch  i;.  U.   Co..   200,  2fl3. 
Murchisou  v-  ScrKi'Ut,  SO.  81. 
Murdoch   v.  H.  Co.,  244,  340,  347 
.Murpliy   V.  \''-:\\w,   341. 
.Murphy  V-  Hays.  3:!lt. 
Murphy   r.  KaulVinan,  -1. 
Murphy   v.  It.   Co..   2:;i>.  2.17,  2o8.  2G5, 

207,  .302,   340,  341,  ,348. 
Murray  v-  r.urlliiK.    10. 
.Murray   v.  Clarke,  78. 
Murray  v.  .Marshall.  TS. 
Murray   v-  W  arncr,   l.">,   185,  205. 
>lusi'h"auip   v-  H-  Co.,  100. 
Muscr  V.  Holland,    i42. 
.M.islcr  V.  U.    Co.,    .302. 
Myall  V.  K.  <"o..  11.'.. 
M'ycr  V-  I'l'ik,   100. 
Myers  i;.  Itayniorc,   214. 
Mvers   v.  t'oll'.'ill.    73,    70. 
Myers   V-  i'erry,   12. 
MVers   V.  K.   Co..   l.'.O. 
Myers  V.  Walker.    47. 
.M'yltdU   V.  U.   Co..  2'.il. 
Myiianl   v.  U.   Co..   Nt>,  130,  162. 
MyunlMH   V.  U.  <'<>.,  311. 
Myrick  v.  K.  Co.,  103,  107, 


N. 


Nasjloo  V.  Lyninn.  54. 
Najae  V.  K.  Co.,  1(13,  28,'',.  201. 
Napier  v.  Cenlral   Hank,  05. 
Nash   V-  .Mosher.    21. 
Nash   V.  I'ai-'e,  47. 

Lo«k  Co.  V.  U.  «'o..  103. 

K.  Co.   V.  t  arroll.  ITO. 
.    U.   Co.   V.    l>ayid.    120. 


U.    Co.   V.  Klliott,    231, 

U.    Co.     V.    lOstis.     120. 
11.  Co.     l».  Jaeksou,  13i, 


U. 

u. 

u. 
u. 


Co. 
Co. 

Co. 
Co. 


.Tones.  2,3<>. 
;,lessiuo,  217. 


NaslHi 

Nasliyille  \e. 
Nashyille   &iv 

128. 
Nasliyille   &(• 

271. 
Nashyille   &c 
Nasliyille  &e. 

102. 
Nashylllf 
Nashyilli^ 

210,   2:'.: 
Nashyillt 
Nashyilh 

1(H),  201. 
Niisliyille  i\:e.  U.  Co.   v.  Stnmes,    207. 
Nashyille  iV<'.  K.  Co.    V.  State,  88. 
Nalhau   r.  Sliiyers,    214. 
Nathaniel    lluoper.   'i'he,   21.'». 
National  Hank   t'.  H.  Co..  115. 
.Naye     V.  Tile.    Kx.    '    >..   337. 
Nayiu'alion  Co.   V-  l>\yyer,  122. 
N:n  lor  i>.  Mangles,   27. 
Neal  V.  K.    Co.,   40. 
Neul  t»,  Sauiidersou,    121,    123. 


V.  Sniilli.  347. 
V.   Sprayberry, 


Nenl  V.  State,  37,  47,  202. 


73,  79,  270. 


Neal   V.  W'ileo.x,   74,   70. 
Needles  v.  Ho\yard,  3,3 
Neff  V.  Thompson,   15. 
Nejius  V.  SinipsDU,    2!t. 
Neiirbas  v.  K.   Co.,  341. 
N.  11  V.  Wlleox,    74. 
.\eir  V.  n.   Co.,  347. 
.S'elsoii  V.  ISrown,  8. 
Nelson   V.  Kdward^  02. 
Nelson  v.  Kln>;,  20. 
Nelson  V.  .Maeklntosli,   S3. 
Nelson  v.  Nat.    Steam.    Co., 
.Nelson   v.  U.    Co.,    102,    13il, 

2.')0,  2(il,  200,  ,341. 
Nelson   v.  Steplienson,    170. 
.Nelsdii  V.  WellinKlon,  ."),S, 
Nelson   V.  WooilrtilT,   .3.34. 
Nemours    v.    \ailee,   100. 
Ness   V.  Stephenson,   .■!27. 
Nettles   V.  It.    Co.,   200,  345. 
Neran   v.  Uoup,  51. 
Neyin  v.  I'ull.   I'ul.   C'ur  Co.,  ,324, 


137,   102, 
157,  242, 


Steumb,     Co., 


].".3. 
142, 


Tirrs, 


01, 


Neyins  v.  I'.ay     .state 

1.30,   20».   272.   2.80. 
Ne\  ins  v-  I'eoria,   .301. 
.Neyins  v-  K.   Co..  272. 
.Newark.  The,  ItiO. 
Nevyheruer   v.  Kx.  Co., 
.\e\ylierKer  v.  Howard, 
New   llriinswiek   Steam   Co.  v 

122,    123,    121.    12."..    13.'-.,   33S. 
Newliy    V.  U.    Co..   132,   1,3.-.. 
Newell    V.  Smith,     l,"i4. 
N«.w   HiiKland  Kx.  Co.    f.  U.  Co., 

05. 

Newhnll  V-  PnlKO,  5,  ,'',1,  32. 
New   .lersey.   The,  V.  ( Oeolt,   100. 
Ni'\y  ,I<'rsey  Kx.  Co.   v.  NiilioN,  341. 
New  Jersey  K.  Co.    v.  Keiiiiard.  307. 
Nevy   .Jersey    Steam    Co.   v.    ItreeUeti. 

208.    200. 
Ni'\y  ,Iersey  Steam  Co.    v.  .Merehanls' 

Ilk.,  0.-..  1(10,  i:;7.  142.  1(52,  ,33,S. 
New   Orleans.   The,    3,",S. 
Ni'w  Orleans  Ins.  Co.   i>.  It.    Co.,    137, 

102.  .3:;8. 
New  Orleans  Ac.  It.  Co.   v.  Allhrltton, 

207,   :M0.    348. 


Orleans   \e.    K.    C 


V. 


It. 


Co. 
Co. 


n. 

,  348. 
It.    Co. 


V. 


V. 


Rurkp, 
Kaler, 

Hurst, 
Iteeso, 


New 

.3(r_', 
New    Orleans    &e. 

137.    1  10,    102. 
New     Orleans    \p 

2.".0,  2.'..3,  208,  317 
New    Orleans   tVc. 

:ioi. 
New  Orleans  tiv 

307. 
N<My  Orleans  \e.  U    Co 

25.3,    200,    347,    348. 
Newport,   Thi',   213. 
.Newport  &e.  HriilKO  Co.  V.    Douglass, 

53. 
Newson  v.  Axon,  70,  333. 
Ne\yton   V.  I'ope.  45. 
N.'xy  York  \e.  It.  Co.   v.  Rail,  206. 
New  York  &e.  It.  Co.   V.  Hurna.    220. 
New  York  &c.  it.  Co.  v.  Davles,    57. 


11.  Co.  V.  Schnelilor, 
V.  Statham, 


632 


TABLE   OP   CASES   CITED. 


The  Keferencos  are  to  Sections. 


New  York  &c.  R.  Co.  v.    Doane,    234 
2tJ0.  ' 

New  York  &c.  IS.  Co.  v.  Schuyler,  50 
New  York  &c.  Steum.  Co.  v.  WrlgUt, 

XewYork  &c.    Tel.     Co    v.     Drjburg, 


11,  i;!7. 


:{io,  ;u7,  .'iis,  ;ui),  .,::( ,  -.i-si. 

New    World,   The,     v.    Klui;.' 

Nlamira  15k.   v.  Brown,  270. 
Nliigura,  The  v.  Cordes,    83,    84,  100, 

NioholiLs  V.  U.  Co.,  i;«l,  1(12. 

Nlehol.s  V.  Ilalllday.  S2. 

Nk'hols  V.  K.  Vi)  .  ;i()7. 

NU'liolsou  V.  H.  To.,  2.'!ti. 

Nk'liolsoii   V   Willau,    i:j(i 

Nleto  V.  Clark,  2!KS. 

Nines  V.  U.    Co.,    107. 

Ni.slK't  V   Trust  Co.,  .")l. 

Nitli,  Till',  n;i),  iti2.  ici;, 

Nltro-glyicruit'  ('as<'.  iKi 

Noble  V.  .MilliUcii,  M. 

Noliin  V.  It.   Co.,   IML*,  ^!(i5,   ;iOO. 

Nolaiid  V.  t'lark.   i'lS. 

Nolcs  V.  .Maralile.    t>,S. 

Noltoii   V.  U.   Co.,  22.5. 

Nora,  The,  182. 

Norcross  v.  Xorcross,  74,  7(5,  7 

Norfolk  iVrc.  R.   Co.   V.  Irvine.  271,  27o! 

Norfolk  iVe.  K.  ("o.    if.  Wysor,  203. 

Norman  v.  ''hiUips,    21l". 

Norris   v.  IJ,  Co.,  120. 

Norris  v-  Staii.-J.  -4- 

Norristowi-  v.  .Mayer,  347. 

North  V.  Merchants'  Traus. 


234. 
,   142. 


170. 


212. 


327 


107 
North. 
North. 
North. 
North. 


Co.,  102, 


iViP.  II.  Co.  V.  Pase.    202. 

iVc.  U.  ("o.   V.  Scholl,  2'.U. 

^c.  K.  Co.    V.  Slieiilierd.    1,%. 

iVc.  U.  Co.   V.  State.   .•{41. 
Noithampton  Mank   v.  Mass.  Co.,  60. 
Northru|)  v.  I'ass.  Ass.  Co.,  228. 
Northriip  v.  H.    Co.,    2(11. 
Northwest  I{.  Co.   v.  Hack,  29S. 
Norton  v.  Siiuire.  •!."). 
Norton   V.  AYoodrnff.  ,S. 
Norway  I'laiiis  Co.   v.  R.    Co.,    40,   47, 

H\.  123.  2111,  202. 
Norwich  Ti-iins.  Co.   v.  Wriglit,    121. 
Notara  v.  Hendcson,    214. 
Notteliohin  V.  MauH,    07. 
Nourse  r.  I'rinie.   til.   05. 
Noweil  V.  Wriirht.  :!.!0. 
Nndd  V.  .Montanvno.  lit. 
NnK'Mit  V.  Smith.   .S3.   118,  120. 
NuttiiiK  V.  n.    Co..    102,   107. 

o. 

Onkes  V.  Moore,   20. 

Oal<(>s  V.  K.   Co.,  272.  27R. 

f)al<ev  V.  (Jordon,   lol.   10.<?. 

Oakev  V.  Kussell.    S4. 

OaUiey  v.  State,  8. 

Oakley  v.  SFeain    Packet  Co..   125. 

OUannon  v.  Ex.   Co.,   112,   lie. 

Oberfelder  v.  Doraii.   329. 

O'Brien  v-  Hound.  28. 

O'Urieu  V.  Cunard  S.  S.  Co.,  300. 


Or  en  v.  Ollehrlst,  1(50. 

Or  en  v.  K.  Co.,  220.  2.';0    2«) 

O     ricn  V.  West  St.clCo    329 

O'canS   .s.  (■„.  t,.  .\i;.Alpl„,  330 

Oeli  V.  H.  Co.,  ;;4o 

0».-nnor  t,.  Forster,  .'m. 

O  l„nnell    y.  It.   Co.,   i:j(|    •>•.,}    o,., 

jK'.leli   V.  I.atl„„p.  .^7,  iiiw         "■ 

OhlovV.'.  It.  C„.     ,     Viml.'wl,    '..    •>,.« 

ohioA...  K.co:;:i,|.(t:"A:;;;-•^■ 
3^7.    '•  "•  ''"•  *"•   I'i-'kersou,   200, 

^'I'lio.^'tio"'  ''"■    *•  """bar,  84,  8«, 

Ohlo.Vc.  U.  (  ,,,  V.  Knrich,  100. 

Ohio  \c.  U.  Co.   V.  MuLllnir,  2'20   220 

240,  2II((,  2i;(!.  —  '         • 

Ohio  .Vi-.  U.  c,;.  V.  NIcIJcss,  240. 
•     no.vc.  I{.  Co.    V.  Sihiebc.  I'MH 
Oil  o_  iVe.    U.    Co.  V.    .^elbv,    137.  24.') 

-*i,   Jill).  '  '        ' 

Ohio  iV:c.  U.  Co.  V.  Stratton,  :i(X),  308, 

Ohio  iVc.  U.  Co.  V.  Swarthont,  241 
Ohio  iVi'.  U,  c,,.   J.   v,,||,._  1;.,    2r.,  ■ 
Oiirhrn'  V.  Hriscall.   17:^. 
Oil    Creek   iVe.    K.  Co.  V.  VAark,    241, 

Oibcrs,  The.   102.   170.  .338. 

Olsoin  V.  Ci'ossinan.  so,  f.l. 

Olson  V.  U.  Co.,  L'i:il. 

Olwell  V.  Adams   l.x.   i\i     137. 

O'.Mara  v.  I!,   Co.,  314. 

Oiicalt   V.  Durliiii;.   1.5. 

OiideriiiH;    1-.  Ccnlnil  Nat.  Rk.,  31. 

(»'.Veii   V.  it.    Co..    112 

O'Neil  V.  William.   ti.">. 

Oiirnst,   'I'lic,    i:!i. 

Ontario  I!!;,   v.  Ilanlan,   100. 

Opiieiihelm  i>.  While  l.lou  Hotel,  76. 

SO. 
Oppc  nheimer  v.  E.t..  Co.,  13."'.,  141.  142, 

144.    lOii. 
Oppeiiheiiiier  v.  U.  Co.,  242. 
Oran^'e  County   Hk.    v.   lirown,    1;J3, 

270.  '271.  '.^72. 
Oreiron  \i'.  Trans.  Co.  v.  Ililmers.  61. 
Oritiaiumc.   Tlie.    Hid.   I1;:;,   170,  :t38. 
Onuouil   t>.  !lii;;lies.    22S. 
Ormsbv   V.  It.   Co..  137.   IT.S.  2I>4. 
OrndorlT  v.  Ex.  Co.,  1.37,  142,  Km. 
OI!( Hike  t;.  I!.   Co.,   101 
Oltoiuiie  V.  220  Tons  of  Coal,  100. 
Oil   V.  It.    Co..    107. 
Oiser  r.  Storms,  l.'i. 
Orit  V.  It.   Co..    107.    1.37. 
Osboru  V.  I'nioii  Kerry  Co.,  234. 
OsL'iiodby  I'.  I.icmliciiier,  5. 
Ostr.iiider  t>.  Itrown.  2iM. 
Ouiinei  V.  Henshaw.    11.''.,    202,    272, 

2SI!. 
Ovnland  Mail  Co.  v.  Cnrroi!.  84,  102, 

i:;7.  1  12.  102. 
Overloik   V.  lllMs.   ."iS. 
Overseers  v.  Warner,  72. 
Oviati  V.  U.   Co.,  20(1. 
Owen  V.  H.    Co..    108,   158. 
Oweus  V.  Geigcr,  45. 

633 


r^ 


np 


TABLE   OP   CASES   CITED. 


The  References  are  to  Sections. 


'J 


!  I 

I 


m 


o 

c: 

< 

■JO 

■m-Z. 


3t» 


Uwpns  t>.  Klnspy,  51. 
Owtiis  V.  U.    Co..  .'ill,  .'M7. 
<).\f(iri|  r.  I'l'tiT,  •J'.>7. 
Oxloy  t>.  U.  Co.,  i;t7,  102. 

P. 

Pnolflr.  The,   100,   i;i7,   MO,  100,   221. 

I'liT.'iox.  Co.  V.  MiiK'k, ;«.''). 

I'lK'.  lOx.  Co.  r.  Diiriicli,  ;iir>. 

I'lK-.  I'Dst.  Tel.  Co.   V.  KU'lschtT,  320. 

I'lic.  It.  Co.  V.  .MIlliT,   .•!)(». 

I'lic.  It.  Co.    V.  Stulls,    U.'j. 

I'lick   V.  .Mii.vni'.    ;1I7. 


I'liikcr  i;.  < 
riK-Uiii'il  V 
rarkuiil  V 
rarkiii-il  V 
rackiini  (• 
rndil.Mk   I' 

l'aihlr;lll  \i 
I'lll).'!'     V 

rniiic  1' 


iuics,  :a. 
cciiiiiiii,  11.'!,  iin. 
Diiii.'.  i;oi. 

.Norlliciiilt.  77.  fiO.  81. 

■I'livlor,  in.-,,  121. 

i;    Co..  2(i'.>. 

.  i;.  Co.   t).  llot'lil.  .'<41. 
Slilllll,  2!':.. 
It.    Co..    .'.17. 


I'niiiiiiii  V.  It.  Co..  2!tS. 
PaliiKT  0.  MoIImiiiI.  10:(. 
rainier  V.  U.    Co.,  S"),    104,   105,  241, 

214. 
I'Mliiii'iiT  r.  Wacii.T.   :!2,''.,  328. 
riiliiii.ii:  V.  lioiMiiik.   .^7. 
raiiilnif  V    Ilaiuillon.    lUti. 
ranlci'  V.  I>n"\v,  St.  271',  272, 
I'ardluuloii   V.  It.    Co.,    HO. 
Park    V.  o'Mrlni.  .'ill 
Park   I'.  Pnsioii.    l.'iii,   .3.35. 
Parker   i-.  .Vdains.    .'ill. 
Parker   i».  Itrauekner,  (12. 
Parki'r  v.  Ilrliisoii,  Itil. 
Parker  v    Itrow  iilii:;.   2!>.'>. 
Park.T  I'.  I'liiu'H.    xt.    P-i.l- 

V.  .I.iliies.  rj'.>. 

r.  I.oinl.anl.  20.  22,  48. 

V.  .NhMNplls.    21. 

IV  It.    Co..   2!>S. 

IV  'ntTan.v.    1.3. 
Ilnll.    .'>1. 
■j'el.  Co  .   .317.   .310. 


ParkiT 

Parker 

Parker 

I'arker 

Parker 

I'arks  V 

Parks   »• 

Paririelei 
I'aniielei 

I'MriMi'lel 
Parilielei 

Parshall 


•>7 


V.  FWel    r. 
V.  I.owli  ..  .St.  217. 
V.  Mi'Nil.   V.  SI. 
•  V.  Wllks.   20.-.. 
V.  I'u'u'erl.  .-l.  ."4. 
Parsons  v.  Manly,   si,    12it,    123,    201, 
Parsou.s  r.  Monleatli,    121.     122.    12.3. 

13',>. 
Parsons  r.  f>verinlre.   Til. 
Parsons  t>.  H    <'"  •   --^■ 
I'arirl.lire  v.  I'arlinonth  Collc'irp,  20. 
PassenpT  U.  Co.   t».  Yonnt;.    '-.'■.7.    20S. 
!'assnii>re   jv  3'el.  Co.,  3H!,  317.  3r0 
Palrliin  IV  Pierce,  ,''.1,  02. 


Palrla.  33m 
I'alselieliler 
Pal'en  V.  I! 
Patterson  •' 
Patters, Ml  V 
Pi'ttersoii  V 
I'Htlerson  D 
Pattison   I' 


lt;il 
V.  It. 

Civ. 
(Mv.t 


Co.,    2Stt.   287. 
•-'34.  ;i47. 

,    33H. 
.  MeCaliev.   27. 
.  Melver,    33. 
.  It,    Civ.    .341. 
Ulanetianl.   103, 


Puttlsuu   IV  Syraeuse 

6^4 


Nat.    Bk.,   31. 


PattlHon  V.  Wnllnep,  1,3. 

Pat  ton  V.  .lohnsuii,    1.3rv 

Pat  ton  V.  MaKiath,    121,    122. 

Pal  ton  V.  It.    <  'o,,   :!02. 

I'atnrzo  v.  CoinpaKiiJp  Prniirnl.sp    162 

I'aulet    V.  It.    C(V,   301. 

Pa  illli   V.  It.    Co.,    2(i!). 

Paiiiitscli    V.  It.   Co.,  227,  211. 

Panlinii'r  v.  It.    t  'cv,    2!i7. 

Pawlett    IV  It.    Co.,    ,3(K). 

Payne   v.  Hensley,  ,>l, 

Pealioily    iv  It.    Co..   214. 

Pearsall   V-  3'el    Co.,    .'11!). 

Pearson   iv  I'liainv   !i(',.    223,  224. 

Pease  t).  It.    Co.,   2.'it>. 

Peek    IV  Nell,     -MH. 

Peek  V.  K,  <'o,,  S.S,  2.-.7,  'JC,.-,,  27S,  338. 

Peek    V    Wi'eks.    137.    140,    It,'!. 

Peebles  tv  Purrar,    I'.l. 

Peeples    iv  It,     Co.,    '.".•S 

Peet    V.  .MeCraw,  "I'l.  S2, 

Peet    IV  It.     Co,,    !)7.    'Jul,    ;!l.". 

Pi'Krain  v.  Tel.   Ccv.   ;t'jo,  :;i'.t. 
Pelxotll   V    Mel,an(.'lilili.  217,  '271, 
Pelton   V.  It.  Co.,  •.'o2, 
Peinlierlon  Ccv    t>.  It       Co.,      Idl,     i;{7. 

ItiC,    1li'2. 
Pender  JV  Itolitilns.  .S3, 
I'eiKlerKasI    ivAihiiiis     Kx.    Co.,     101, 

lU.'t 
P.ndletoti   r.  Kinsley,  'JiiS,  2'.H). 
Penlniisnlar  \iv  Co,   iv  Sliaiid, 
Peniston    V    It,   Co,,  'J.'ll.   '.'.■.•.> 

I' 1    tv  It,    Ccv,   St;.    !.'!.-v    1112. 

Pviiii.  ( '.inal  Co.  V-  McMitlcvv. 
Peiin,  Canal  Co,  iv  I'-uid.  I: 
Penni'w  III  D.  <  'nlleii.  111.  s.l. 
PcMinliiL'toii  IV  It,  Co,,  212, 
Peniilni;loii  v.  'I'd,  Co,,  .'{IK. 
pptin.  U.  Co    V.  .VslU'll.   2.''.4,   304,   .308. 


102. 


V.IO. 
:!ll. 
.   SI, 
121. 


It. 

it' 
It. 
It. 
It. 
It.  ( 


34tt 

Penn 

Pl'IIIV 

Peniv 
Penn 
r,.nn 
Penn. 
Penn 

217. 
Penn,  Co 
Penn,  Co 
Penn 
Penn 
Penn 
Penn 

.'!12 
Penn 
Penn 
Penn. 

.•140. 
penn, 
Pi-nii, 

101, 
Penn, 
Pc-.m, 
pemv 
Penn 
penn 


Ccv 

Ccv 

Co. 
C'V 

(    IV 

Co, 


It    C 

It.  c 

It. 

It. 

u. 
It, 


Co, 

Co. 
Co. 
Co. 


I>.  Hooks.    2'J.''v   :'.I7,    3)S. 
IV  Itntler.  I.'i'.i.  2lS. 

IV  Cm II,  211 

V.  Palrelillcl,    ltl2, 
IV  rjallau'lier,   2:10. 
V.  tiocidanin,  ,">17. 
r.  Ilenclers no,    2;i4, 

nine.  214. 

lloaL'land.  2.'.3. 

IV  Kil;.'i.re,  2r.3,  ,'!0S.  347. 

I',  I.Mnirdon.  ■J.'i.",  :tl2, 

IV  Miller,   •272. 

IV  .MeCloskey,  137,  247, 


MeTltfh.v  341, 
Prie.v  -J-J.-.. 
Italordan.      130, 


.3.38. 


It.  Co.  tv  Hoy.  232,   203. 
U.       Co.  tv  Scliwiir/eiihercpr, 
i:iO.  21tt. 
It,  C-..    IV  Spieker   'Jl'J,  2HS.  .300. 
I!,  Ccv    V.  St.Mte.    2'!0 
I!    Ccv    (•    StiTii.    21'Wl 
It    Co,    »v  Vamllver.   2^7.   208. 
It    Co     tv  '/elio.  2.34. 
Peliton    IV  It     Ccv.   '2S(i,  287. 

People  V.  Curyl,  20a. 


I 


TAHLE   OF   CASKt?  CITED. 


The  Kcforsnces  arc  to  Sections. 


122. 
nnrolso,  181 

•J  11. 


t,  1:2  J. 


cr..  27S,  :t3«. 
1  Wi, 


;nri. 
:il'.t. 
;i7.  271. 

.    mi,    1:17, 


«.   <•.)..   101, 

t.  2iK). 

1.1  M.l,  ir.2. 

Tii2.  I'.tO. 

.■V.  :ui. 

•C!,  SI. 

H:t,  121, 

:,4,   ™U,   ,!08. 

LT.,   :!I7,    ;UH. 
'•>.  2lS. 
II 

Ir.  2:11 1. 


:;i7 


111,    2;!4, 


.:i.  ;tos.  :ii7. 
.'",.  :ti'.;. 

■.V,  1 '7.  .17. 

rui. 

1.10,     ^.18, 

21».'V 
iir/i'MhiTKor. 

J 12.  2»<S.  r»oo. 


r.7.  29a 


»7. 


People  V.  Ollisnn,  nm. 
I'copic  V.  .llllsiPii,  •J.'.ti, 

I'copli'    f.   JlMII'.S,    7-. 

I'i'i>|plc  V-  .Mi'iMl.v 
■  •i-(i|ilc  V.  K 
I'culilc  W.  >.<lllllt 
l'co|ilcs'  liilllk  V 
rcDpIrs  l'lls.-4.  (11. 
I'llUllI  \i'.  It.  <'ll. 
I'coliii  \r.  I!,  t  c). 
I't'orhi  \i'.  U.  «'>. 

ri'ii|i<  T  i>.  Tci.  t'l'..  •'ii'.',  ;>'. 
I'ci'i'v  V-  Miiliiiiiiuii,  :::t. 
I'lT.'lni   i>.  It.  >'»■.  I'M.  liif*. 
I'lTi'iic,  'i\\<\  it«2,  ;!:'.«. 
I'lTi'/.  r.  It.  ''"■•  •'•"'■ 
rciUlii.s   V    It.   <c.,    KHI,    in' 

■J  Id.  2 It;,  21s,  .111.  :!i.'.,  rvi.s. 

I'l  rkliis   r.  W  rlwhl.   ,;7i),  :;71. 

I'lTlcy    i>.  It.    <<>.,   27N. 

I'lTr.v    t>.  »'ialu'.    '12. 

I'criv  i».  It.   I'd.,  'j;;7. 

I'.rry    i'.  'riioMiiisoii.    1:17.    l.M,   1.^0. 

I'lT^Ili  r.  <iiiij:«i<'.  21.  :'.:!. 

i'l-si'ii  {I.  I  iiiixiiiiiiiiiiiii  r>k.,  liii. 

It.     «'c...    '.Ml. 

ItvliiiiilH.   2:!1.   2'.a 

III'  ir.    1112.   nil. 
1-.  t'MSC,    'Jill. 
I).   It.  Co  .  2'.KI. 
ll.'ll.r.   nil*. 
It.    Co..    211. 

>".  1 1 1'Iswolil.   .M{. 
V-  lliiiiiiiiii,  "tl.  70. 


2tU. 

2(11. 
Ci).,  Wl. 

ss. 

.M..l•«<■l<'f^l.l,  ^^^2•.^. 

t>.  c;rffii.  ."IIS. 
V.  itc.v  ijiiiiis.  :iii). 

V.   I!.  C.I..  Ml. 

V.  'riiiiiii|isiiii.  2:c 
(I,  ;!i'.i. 


1:11),  2:10, 


I'cIlTH  V- 
I'l'IcfH     V. 

I't'lcrsiiii, 

i't.tiT>"ii 

I'l'KT.-liill 
rctllc  V- 
I'l'lflf    I'. 

ri'itiiiiiiM' 

I'lMlit'lTW     .       -  .         ,, 

I'rlill    V    V\rs\   Sill.  Hk.,  :>l. 
I'.tl.v   V.  tiv. mil,   .".s. 
I'cvi'i-l.v   V-  Cli.v  iif  lloHlon,  .11)7. 
I'fVlciiiii.   Till  .   2M1. 
I'fislci-   V    It.   Ci.  .  '^72,  2i  I. 
I'liiiriis,    TIh'.    :t".7. 
I'liiiir   I',  ('olllii-*.    21.1. 
i'licliiii    I'.  TIk'   .Mviiniilii.   Kdl. 
I'Krlp^   I'.  Itiislw  Ilk.  2'.l. 
rii.'lpH   V.  l*iM.|ili',    .'.. 
i'hilliM   t>.  It.    Co  .   272. 

It.    C,,.,    nil.    1:17.    MH. 

■.    It.    Co.    t>.    AmliTHoti, 


.Viv 


I'lll.''T 

I'llilll. 
.'till. 

IMill  I 
I'hllil 
I'lil'il 
•Milli 
ri.llu.  .Vi' 
I'lilla.  >.<-. 
riill.i.  \c. 
IMillii  M-. 
i'llilll  \r 
I'hllll.M  V 
I'l|lll|i«  P 
!")lll.''>   V 


U. 
It. 


Co. 
Co. 


DiTliv,  •JUL 
lliissiif.l.  ;i(is 


( • 


K 

Co.    V- 

It.  c,. 
It.  <•... 

It.  Co. 

It  c. 

It.  C.' 
Cl;irk 


t'    llolllc'h.   2IMV 

Klim.  11.  i:i'.>. 
V   I.iirklii.  2.'i7. 
V.  I..'liiiiiiii.  1112.   2ii.'i 
V.  Itaiiix'v.    toll. 
J»    Itlic.     211 

I    Thoui|iKon,  2:12 
I112. 


Iliirrlxs.    1.%. 
S.iiifonl.    H4. 


I'lillllli-*  i>.  lirlL'liiitn.    127. 

I'Mllllps 

I'lillill' 

I'llllllps 

riiMllps 
l'lillllp« 
I'lilllln 
I'lillllp 

I'lio.'lllv 


r.  <'iiriloii.    .'IS. 

i.   Furl.'.    111.    KU. 

p.  lOviiiis,    ;<27. 

|l.    lll'IINOII.     H27. 

r  It    Co..  1117,  ;ii»».  ;U 
V.  lioiii..,  2ir.. 
r  TlioiiipHoii,  .M. 
liiH.   Co.  V-  Krlf  &<• 
c...  1.(7.  Il'.t. 
I'lfkiTluB  V.  Uiirkloy,  IM. 


Tra:in. 


2.'t;i. 
2I'.» 


rukormjlll  V.  Hrown,  56. 
rickiTiiiK  V  iiiiHk,  :iu. 
riiknis  p.  It.   (•,,._  ^iin 
i;i'kr.,i-,i  „,  It  ,„., ',»!,  m,  i.v,, 

I  l<'Hi>'l    V.  .MiKiiy,   ;>t!. 
riiilmoiit  .MiK.  Co.  V.  U.  Co.,  101. 

I'l.l'   V.  I'liwli,  -JIJ. 
I'liTi-c   t>.  It.     Co.,    11,S. 
I'lc'llf    V,   SlVllM,     \i~. 

I'iiMic  V.  Wliisor,  'jia 
I'lpoi  r.  c,ii,i,.y,  iij.  (;■{,  ca. 
1  iki-  V.  M:ll■^ll,  s;;. 
I'Iki-  V.  It.   C.I.,    III,  'jsT. 
I'llm-fc    u.  Mill,.,  jii. 

1'llKh'll     V 

I'lllUcl'Inl 

I'iiikcridii  r.  Wiiiiihvitril, 
27J.   ;;'J7. 
V.  tifiir.  ITi. 
It.  c,i.,  •j(i:j. 
\\''1Ih,    'Jil. 
.M:iiiii\.    7i 


107. 


'  •ri'oiii>, 
I'.  It.  C 

\v. 


■>1. 


7i!,  7'.i, 
l-liikliiiiii 
riiiMi'y    tv 

I'lllMI'V     V- 

I'lp.T'r. 
rtiloik   t>.  Wi-lls, 

riti'c  p.  on  mi,  so 

l'inHliill';.'li    \ 


72,   7;!,    74. 


7,  XIX 


.  :;i7 
,  \i-. 


.'iii7 
fills 

riiif. 
nils, 

I'ills, 

I'lllH 
I'lllS.    iVc 

rills.  \i-. 

I'ills.  \l'. 

I'm.-.  \r. 

I'lllS.    \>'. 

ruts.  \i'. 
rills.  \i . 

I'lllslililK' 

V.I  17. 

nils, 
rills. 

I'ills. 

rills. 

I'itls. 


It.  I 

it  I 

It. 

It.  c, 
It.  c, 
It.  c< 
It.  c, 
It.  c. 
it.  c. 
It.  c 
It.  c. 
It.  c 


It.  Ci).    V,    Aiidrewn, 
liiirrt'lt.  I:t7. 


o.   V. 

'".   V.  Iti'i-ryiiiaii.  'JM. 

Co.   p.  r>liik;liiiiii,    'J30. 

o.    V.  r.Id«  II.   !^s 

'<i.  I',  I  iilihvcll.  'J'J.'i. 

o.    |>  llii/.ili,    'Jill, 

o.   V.  Ill  iinl^'li,  JK,  -^Vi. 

o.    V.  Iliiuls.  '_'il."..  .•111.'. 

I'.  lloll,.|ilimk.  2i>4. 

V.   riollowrll.  'JlU. 

V  KiMiisi'.  2'j'.i. 
('  .M;irllii.  .•liis. 
Co.   V    .MrCliirK,  200. 


It 


It.  ( 
It. 
It  I 
It.  I 
It.  I 


\r 
\i' 
\<' 
.V<- 

I'lnsiHii'),'  »Vi 

:tii2. 
I'lllS.  ,Vc.  It.  < 

rills.    .\r.    It      ( 

nils   A...  It. 

riMsliiilu'    ,Vc 
22:1.  2112.  2ii7 

I'lllS.  \r.   It.  Cm 
I'lllS.  \r.  It    Co 
I'ills.  Sl.'.'l  Cn 
I'lvutll    I.    M.  I  • 


1(. 


p.  Morion,  pil, 
p.  N';i/.iiiii,  2ilM. 

r.  Vi'Isoii,    'J.'',!!. 

t>.  Noel.  :ill. 

p  Nii/iini.  211, 
C,>     p    nilow. 


1.10. 


•2.^;t. 
22ri, 


siMsscr.  '-".IS.  ;iiH. 

TIk'oIi.iIiI,    U'IS. 

:ilo. 
yne. 


I  'o.    p.  Tlioltlpsnii,    ;i|l 

It.    Co.     t»     Viiiulyi 


V.  VliiliiL',  .•111 
p.  Wliliiiiiis,  :!I0. 
p   llin.  kl.'v. 

liHii. 


.  ^11 

St.  •.'711 
Co  .   1.".'<.  •.'<l.% 
Sti'iini    Nii\. 


I'lihM'  j>.  rniiiii  i;\ 

rinlsli'il  j».  Itosioii 

12'.'.  nil! 
riiisi.T  p  It    Co.  :iii 

riiill    p.  Illlilini-il.   Ill,   17,  4S,  40. 
Pliill    p.  It.    Co.,   22!l. 
I'liivfonl   p   T.-l.   I'll..   .'118. 
I'ir.isiinis  V   It    Co.,  218. 
rii'ssy,  ■•V  piirit',  '.W. 
I'llilll  V  .liiriilcr.    74. 
Polliinl  V   It    Co..  .•;ii7 
I'ollofk  t»   I.iiM.lls.  72.  S2. 
I'oiviii'slii.  Till-.  :i:t7. 


Oo.. 


035 


T 


! 


CD 

:?^ 
c: 


TABLE   OP   CASES   CITED. 


The  References  are  to  Sections. 


Poniproy  t>.  Donalilson,  84. 
i'oiiicroy  V.  Sinllli,   <W. 
I'oiifc  V.  MciOlvy.  .")«. 
I'oolc   i>.  IC.   Co.,  :uu. 
I'oiilf  v.  Syinuiiils,    15, 
rojic   V.  Hull,   Ml, 
I'oiii.'  V.  Ti'l.   Co.,  317. 
I*o|m>'h  Chmi',  '2'Xt. 
I'olcluT  V-  11.    »'•'..    !H!. 
roiHT  V.  IIlldtld'iiiKl,    272. 
I'DrltT  V.  rftlcliKill,    «. 
I'orlcr  V.  U.  Co.,  i;o2,  2f'.l,  ,147. 
I'ortcr  V.  .Soulli.    IC.v.    Co.,    l;i'J, 

UY2.  I  ill. 
I'ortcr  V.  The  New  KiiKlaiid,  2,"iO, 
I'ol-tcrtlcld   V.  Iliiiuplift'ys,  84,  80, 
l'onNiii.,'..'.ti,   Till',    lii(>. 
I'ornii'iisc,   Tlic,    ItiJ,   ;{;{8. 
I'ost    V.  it.    Co.,   2l:!. 
I'o.st    V.  'I'railfsiiiiiii's   Hank,   .'i.l. 
I'osial  Tel.  Co.   V.  I.alhn.p,  340. 
I'ollioiilcr  V.  Hausoii,    i;ii. 
Poller  V.  I.ansliii;.    -II. 
I'oiter  V-  l{.  Co.,  :;.",i,  .■ill. 
roller  V-  Tliomp.-iiiii.  .")2.  01,  C2. 
Pol  In  V.  K.  Co..  l;t7. 
Poiielier  V.  n.  Co..   r.t2,  227,  248. 
Poiillii  r.  K.  Co.,  :;.".:{. 
Powder  Co.   V-  l'.iirk!iar<lt,  8. 
Powell   V.  Heveiiey,  2!l7. 
I'owell   V.  I. avion.   l:;."i. 
Powell    V.  Mills.    .S»     Vi.-.. 
Powell   V.  .\lvers.    K4,    L'70,    271. 
Powell  v-  K.    Co.,   80,    i;)n.    i:;',», 

242. 

Power.**  V.  Knvenporl.  K.".,  127. 

Powers   V.  .Milcliell.  40,  41*. 

PowiTM  V-  It.    Co..    200. 

Po/.zl   V.  Sliliiton,  .S!l. 

Prae_'er  v.  U.   Co.,  2.")4. 

Prall   V.  Tilt,   .^7. 

Prallier  v.  Keiin,    .".3. 

Prallier  v-  K.  Co.,  :U1. 

Prall   V.  K.    Co.,    M4.    i:)r>. 

Pri'telernasl    ii.  Coiniiton.  207. 

Prenllee   v.  IteeUer.    I:!".t,   l.^'il). 

I'riMillss  V.  Iloslon.    ;!ll. 

Priston    V.  .Ve.ile.    ,",   2."i. 

PriliUle  V.  Kent.   22. 

I'rlce  V.  ninie  Sav.   P.iink.  .'•.'i. 
Price  V-  Ilarlsliorn.  213. 
Prii'e   V.  I'owell.    170, 
I'riie    V.  K.    Co..    110,   200. 
Priee    V.  The    friel.    .".3H, 
Prideanx   v.  .Mineral    Point.   341. 
Prlesl    V.  n.    Co..   2!IS, 
Prlinro.se  v   Tel.    Co.,    310.    317, 

:;  lit, 
Profllet   V.  Hall.   7'.>,    SO. 
Propeller  (Npninieree,  The,  84. 
Propst  V.  Kosenian.   T<\ 
I'rnllt  V.  H.    Co..    12.'.   204. 
I'll-h    V.  Tel.    Co  ,   .323. 
I'lillan   V.  H,    Co..   211.'. 
Pnllinni  V-  ItMrllntranie.   1f>. 
Pull.   Pal.  Car  Co.   i».    liarUer.  347 
Pnll.  Pal.  Car.Cr>.   i'.  Hates.    324. 
Pnll.  Pal.  Car  Co.   v.  Itootti.   2.'>o. 
Pull.  Pal.  Car  Co.   r.  Khruinu,  324. 

636 


340. 


102, 


{20, 


Pull.  I'nl,    Cnr    Co. 

2.Slt,  ,324,   32,'>,  342. 
Pull.  Pal.  Cur.  Co.    v 

328. 
Pull.  Pal.  Car  Co. 
Pull.  Pal.  Car  Co. 
Pull.  Pal.  Car  Co. 
Pull.  Pal.  Car  Co. 
Pull.  Pal.  Car  Co. 
Pull.   Pal.  Car  C< 


V.  rrcudoDsteIn, 
CurUuer,     325, 


Lowe.   ,320. 
Marllu,  328. 
Mai  thews,  ;t28. 
Poliorii,  :i2r,,  ;i2S. 

Iteeil,    Jt;j^    ;j(^ 
V.  Sniilli,  .321. 


1  ull.  Pal.  Car  Co,   „.  Tavlor,   ;t24 
Pureell   V.  S(,nU\.  i;.\.  (■',,     140 
Purvis  V-  Coleman,  KO,  ,si. 
Putrnun   v.  H.  Co.,  'jj;;    •>(;7    •mo 
I'ulnani  v.  Wjlev.  l.*".,  37   41"     ' 
I'yin   V.  U.  Co..  231,  3U4. 


Q. 


(Jnaifo  V,  H.  Co.,  2.Tt, 
Quarniau   V-  lleunelt,    ;{()| 
yuitfley   V.  It.    Co.,   IIH.S,   ;tl7, 
Qulinliy  V.  K.   •  o.,  210,  24,h' 
Qnlnihy  v.  \ainlerhllt,'  Hi:;' 

340. 
guluu  V.  n.  Co..  .300. 


34S. 
2Hl. 
240,   2^1, 


R. 


74. 


U.  V.  Ivons,  73.  80. 

H.   V.  Itynier,   72,  7,3, 

Kalien    i-.  K.    Co.,   :.','',;!. 

Itac'e   V.  Hansen,    4.'i. 

KalTeriy  v.  New  HniUHwlck  Fire  Ins 

Co.,    72, 
Ita«an    v.  Aiken.  !»2. 
Ka«slailt    V.  It.  Co..  y.3(), 
llahilly   j;.  Wilson,    8. 
U.  Co.   V.  AndroseroKKin     Mills,     101 

101,   103,   lo.s. 
U.  Co.   V.  liarrelt,  112. 
K.  Co.   V.  Ilarron,  2!il,  2'.)0. 

Co.    V.  Iteaver,  217. 

Co.    V.  Meekwith.  .348, 

Co.    V.  Itorlni;,    2iM;. 

Co.    V.  Caldwell,    i:t7. 

Co.    V.  Chnlletle.    .301. 

<'o.    V.  Copeliuid,    2.S,"). 

Co.    V.  Cowser,    .341. 

Co.  V.  I>inin.  .31.S. 
Co.  V.  I'ralolT,  1,33,    270,  272,  278, 


K.  Co. 
K.  Co. 
K.  Co. 
I(.  Co. 
K.  Co. 
U.  Co. 
It.  Co. 
U.  Co. 
K.  Co. 
K.  Co. 
U.  Cf>. 
H.  Co. 

1.>I, 
H.  Co. 

li»7. 
It.  Co, 


V.  rnller,   88. 

V.  Claiiinan.   341. 

i;.  Ilalloran.   2.3.3. 

Harris.  .'ilS. 

Hinds.    223. 

Hm s,     .'U.S. 

Hnniphreys,    2'.).'i 

Iron  Co..  iiO 

.lones.     1.32, 

Ki'vs,    27."). 

Kl.hl.    2o_', 

Loekwood 


V. 
V 
V. 
V. 
V. 
V- 
V. 
V. 
V.   -         .,       - 

l<;i.  Jt.-.,  '.'17,  248,  ,320. 

V.  MannfaiHirl»,' Co.,  102,  104, 

1.37.  140,   I. VI. 

V.  MltfUell,  340, 


.300. 


1.37,    138,    i;tn, 


'     I 


Frcudcnsteln, 
(jurUuer,     3i;5, 

iwe,   32(1. 

ml  1 11,  ;i2H. 

ill  I  hews,  ;i28. 
•Ili>'  U.  .Ti.-.,  ;J2S 
•'•ii,  :.:iii:,  ;u7. 
■'iiiitli,  ;i2i. 
i.vloi-,  .124. 
•o.,  HO. 
M. 

-'ti7,  ;U)2. 
.■!7,  41. 
1. 


301. 
347,  34S. 

KKi,   i;-K),   201, 


iwlck  Fire  Ins. 


1     Mills,     101. 


290. 

i. 


270,  272,  276, 


29.'-.. 

m. 


37,     13S.     l:(!>, 

S.  .320. 

,'  ('o..  102,  104, 


J 


TABLE   OP   CASES   CITED, 

The  Itefcrences  are  to  Sections. 


207,  ,302. 


HO. 
2!I.S. 


R.  Co.  V.  Murphy,  .HI. 

H.  Co.  V.  O'lliilii,   2IS, 

U.  Co.  V.  QiilKltW,    .'U.S. 

U.  Co.  V.  I'filliiril,   ,3117,  .340. 

K.  ('o.  V.  riiill,  101,  1(13,  11)7,  100.  1,37 

H.  Co.  V.  KiMlckcr.    ,311. 

U.  Ci).  V.  KiM'vcs,    12(1,    128. 

U.  Co.  V.  SUIIIiiiiiii,    201. 

It.  Co.  V.  siiiKi'i'.v,  ;mi. 

U.  Co.   V.  Slcv('ii.>i,     1.37. 

U.  Co.   V.  Vclli'Ic.v,   2."i7, 

H.  Co.   V.  Wiilriilli,  2;i3. 

Itiilsl.T   V.  (»livci-.   .3.30. 

Kaiiiiilc.v   V-  l.i'hiiiil.   70, 

Ifiiiiisilcii    I'.  I{.  Ci).,  2."i7, 

HiiiMiz.v   I'.  It,    Co.,    i;i_> 

Itiliid    V    .Mcl'i'hiiiiK'  Ilcsp.  Co..  102. 

Hilliil   t>.  K.    Co.,    1.37. 

liiniil    1'.  Sliilc   l!k.,  2.S. 

I{iiiii;i'r  V.  I!.   ( 'i>.,   130. 

HiiuMn   V.  Criifl.    .S. 

Itaiiklu  i>.  It.    Ci>.,    2(»2. 

Itiiiiklii   V.  I'ii'kcl    Co.,   2(1,  211. 

Itaiiiif.v   V.  III;;li,v,  21 1. 

ItiiiisKiii   V-  It.    Co.,    .317. 

Itilpp  V.  I'liliiMi',   21  I. 

Itiltcllfr   V.  Viiiici'.    .-.7. 

IlntlilMinii'   v.  Si-iU,  201,  .34.'i. 

Uallllrllll    V.  Sicllll    (•(!..    is.'',. 

Fliiw.'^iiii    c.  Ilnlliiiiil.   |i)2.  lo'.l,  204, 

liinvsDii   V.  It,   *'(>..   1.3'.l,   l.'.O,  240. 

Itiiwsiiii  111   re,  70. 

Iln.v  II.  33ic  Miluiiiik.'c  Ucllc.   KiO, 

Itiiy   V.  'I'mI)1i;<.  21.  42. 

Itil.VlllOllcl    I'.  3'.V,S(1M.    21.'i. 

Hen   V.  SiiMiiiDiis.  .3.3. 

IU'!\   V.  'I'rotlr'i'.    ;il, 

Itcnd    V.  .Aiiiidi.M.  71.  SO,  81. 

Itcid    ?•.  It,    Cu..    137.    :'..3S. 

Uciid    V.  SpiiiildiiiK.   SI,    120,    123,    120. 

I!t3.  2<i.", 
Itcndliiir  V-  Mciikliiiiii.  1.3. 
Iti'iidim;   i>.  I'l-lc'i'.    21. 
rtciii.'iui    V.  It.    <•(...    102. 
ItciiUT   1',  Piivls.    IS. 
ItciiMs   (■,  \v,ii,ini;iii,    122. 
Ki'liii.'.i.   Till',    li;tl. 
Itcddliit:  V-  It.    Co..    207. 
Ifcdhnid   V.  K.    Ci>.,   24,   231,   232.   2!»S 

301 
UiMliiii;t..n   V.  Tfl.    Ci>..    .342. 
Itiilmmid   V   Siciiiii  Co,.  201.  202. 
Ki'diuith    t'.  Til.  Co.,  310,  320. 
Rpilli.'itli   V    Vtiii^'liiiii,  1(10. 
Itr.Ml    r.  .Vldicv.   S. 
Heed   V.  .\\I.4I.   234. 
Hcod    V.  Cm  we,    .3.32. 
no.'d  V.  It.  Co..  102.  2.3.S. 
V.  V.    S.   K\.   ( 


Iti'cd   V.  V.    S.    K\.    Co,.    101,    103.   104, 

107. 
Ri'i'iliT  V.  AiuliM'son.  24. 
R"csc   t>.  Tid.    Co.,   IL-iO. 
Roc^iilc,   3'lio.   SI.    100. 
Rpcvcs  V.  Capper,   70. 
Rocvos  V.  I'loiiiili,    ,'")8. 
Roovos  V.  The  Coiislltiitlou,  42. 
R<>ov('n  V.  Wiilcriiiiiii,   100. 
Rclll.v  V.  KmikI,  41. 
Rclnciiinn  v-  H.    Co..    20. 
Relzenstelu  v.  Maniuardt,   29,   CO. 


n«'ll»iic..  I.iunlior  Co.  V.  Tel   Co    tM 
It.dic   V.  T,.|     ,  ,,      .jr,,,"-  **'•  ^0-  3*9. 

t.Mlllck."    V.  Alklilsoii,  1.3 
If<'ini..,ki'r  t..  |{,  ,„     zii 

•I'MO    f.   IIOKMII,    137,    1(1'>' 
Ki'iitniil    V.  It,    C,.,,    318    ' 
Kevarii  V.  CIdo.  'j.-, 
Itt'N   V.  Kild.Tliv.   2i 
Iti'.v   J'.  3'uiuv.  "l,-,  ~ 
lt<'.viiolds  IV  lliiuliiiim,  341. 

t.'.viiolds  V.  Slnilcr     Hi 

{(■yiiolds  r,  T ,111,   ii,5. 

lodos  t,    It,   Co.,   i:i7    ,u2. 
Mi'i-    V.  I'.i'iiiMlIn,    T,s 
Itlci'    v.  ll.ut.   •JO], 


.'40. 


137,  l,-.8, 
il'i'ri.  ir,i;,  ,3,37,  -.UH. 
I  111  vis,  cj,  (c,   (M). 
I '01.,  too. 

Ilaiisiii,  H\,  102,  IfiO,  ,^37. 
H.  Co,.  i;s;i. 
Till"  (3ia.s.   I>.   Climilcaii, 


Itlic  V.  It,  c 
Itii'li  1,.  l.,ii, 
Itii  lijuils  I'. 
Ulfiianis  V. 
Itli'lianN  (< 
ItlclianU  y. 
Itli-liaids  V. 

10.3. 

Uliliards  j;.  AVi'sliott,  S4    217    "7'' 
Itlrliai'dsoii    v.  (luildMnl,    •J(t3    ' 
liirlianUoii   I',  Ins,   Co.,  r..-, 
Itlrliardsoii    V    Silili'.v.    i;!l."> 
Itli'liiiioiid    V.  SiMJlli,'  "7(! 

!:i''"" '  'V-'    It.  Co.   I'.  AHhI.-v.    211 

'";;,l'J "'     '■^'•'     H-     Co.  V.  JeffcrHon, 

Iticlniioiid     Torn.     Co.  v.  Vaiidcrbllt, 

2'.I|. 
Itliki.rsoii  &i\  Co.  t>.  It.   Co.,    10] 
Itlrki-lls   V.  It.   Co.,    1(11     -"M 
l:lrki.|ts    I-.  T.d.    Co.,    3,-,0. 
Klili'iiliour  !•.  It.  Co.,  uoi). 
Itii'st    V.  (iosi'lini,  .311. 
Iti-'b.v    1).  Iliviii.  ;;|,-., 

"'J'1'4  V;.,.',''"'"'-  '•"'•  '•'"•  I'l'.  i:i«.  143, 
itlii'.v  c.  Tt.  <  o..  11.-,.  ir,o,  ;mi 
llindk'i'   (I.  Iidiiiltliaiils,    1,'-, 
l;iiii;lliii;  c.  Kohl],   .-,:.•. 
Kipli'.v   V.  S.  ,1,  3'1-aiis,  Co,  2(12 
Itllli'iilioiisc  V.  Iiid.    Miic,  .•;I2. 
IvIKi'lilioiisi-   (!.  3'i'l.    ( 'o      ;!(<) 
Itilz    V.  It.  Co..  .sil,   ].!l). 
Itlxford   (..  Siiiiili,    Mi.    11!) 
Itiildiliis   V.  Clih-a;.'o.    .301. 
Itolildiis   V.  M..1111I.  3)0. 
ItohiM'ts   c.  ,Io!iiisoM,    2."'.3,    ,340 
Koehlir.  211. 

Hiiiy.  i:;7.  i.v.,  ino. 

Tliuiii|isoii.   ."i.S, 
TiiniiT,   49,   S4,   11!>. 
\\y.'ill.    70. 
Varbiiro.  •_'3. 
V.  Kciiiifdy,    Ki,    S4, 


ItolliTIs  t) 
ItohiTIs   |> 

Itlllll'I'IS  j» 
Itiilll'Ms  t» 
ItohlTts  V 
Itolli'lMs  V 
RiiImTIsoII 

123. 
ItohlTtsoIl 
Itollrrlsoll 
Itohllisoil 
Itnlijlisoii 
Itoliliison 
Itol'Insoii 
Itiildiisoii 


121, 


f.  I.ippliK'ott,    (12. 
t'.  li,    Co,,    ;!(»(!. 
V.  linker.  21."), 
r.  (MiaiiiliiTlain.  .3.30. 
t'.  Iniiniiori',    13,   .S3. 
V.  I'rost.    .^3. 
V.  Hurley.  02.  6.';, 
Itoldiisoii   V.  Merchants'      Dlap, 
103,   109.   190. 


Co., 


637 


P^!9SBHip 


III 


Wi| 


1   I 


CO 

:^ 

c: 


3."i: 


TABLE    OP   (TASRS   CITBD. 


Tlio  RefcrenceH  are  to  Sections. 


MM, 
liCiM, 


Co., 


Co.,  M. 


to. 


107. 
.'til, 


24S. 


112. 


32.-, 

.'1  ;o, 

l.-.l. 


Robinson  v.  Morrli.    Trnns.    (^o., 

ir,2.  UMI,  2().'>. 
U(>l)liiH(>n  V.  rariicll.  21, 
Uobliison  V.  U.  Co.,  lir.,  2.^2,  241,  2 

:t4(),  ;ui, 

Ucibltisiin   t>.  Sinitli.  M. 
Uoliinsoii   f.  Wt'lili.   .'{01. 
Itolmslcll    V.  It.    Co..   24,'!. 

iioikt'i.  'I'lic.  i;(7.  ific.  ;r.H. 

Hoikfoid  Ac.  U.  Co.   IK  Ucnin.  2!lf!. 
Koi'kwcll   u,  rroclor.   "<!. 
Itoilcrick  V.  K.  Co..   l.'i,'-.. 
UoilKi'fs  f.  Slophcl.    4H. 
HoK<'rs  V.  Arnold,    l.'i, 
ItoKiTs  c.  Ilcnil,  x'.i. 
Hojti'rs  V-  K<'ncli<'f    Steam. 

2  IS,  2l'.l. 
Uou'iis  V.  U.   Co..   11.-..  2,S1. 
Udtrcrs  V.  T«'l.   Co.,  ;!1(!, 
Honors   i;.  Wflr,    1!t. 
Hoticrs  i(.  WhiM'lcr.  2iCi. 
Hojrcrs  l.oc.  Works    v.  U. 
liohiU'  V.  Stlil^rcr,   .':!. 
Honiiiicl   i).  Siluiinliai'lu'r, 
Hoof  V.  n.  Co.,  .Ml, 
Koot  v.  Cliniiillcr.    l.'i. 
l{oot  V.  u.    Co..  in:?.  in4 
Hoot   V.  SIcppinK    Car    Co 

328. 
Kooth  V.  Wilson,   .^S. 
Uosc  II.  U.    Co..    l.iT,   244 
Kosp  V.  Stcpliciis  \('.  Trans.  Co 
Hose  V.  Tel.   <'.i..   .fis. 
UosiMiiiaiMTi   I).  K.    Co.,  22.1. 
IJoscnfcld  V.  U.     Co.,     VM, 

1(12.  .•::c.. 
Kosfiilli'jil   V.  I'-x.    Co.. 
Itosi'nlliili'r  J'.  Uocsslc 
Kosciislchi   I'.  K.   Co 
Uoss   J'.  Clark.   2!t. 
Koss   V.  Mi'llln,  74. 

lioss  V.  II.  Co.,  i:r.. 

Uotcli  V.  Hn'v<'s.  21. 

Kr>tli  V.  U.  Co..  271.  2S0,  2S7. 

Uoulsion  V.  McClcllanil.  10.  22,  20, 

Itouiiils   V.  K.  Co.,  2.-7.  2'.I7. 

Howell    V.  Tel.    Co.,    .'t.-iO. 

Howliiiiil   I'.  .Miln,    2f»1. 

Howle.v  V-  lloriie.    144. 

Hownliitf  V.  <iooilehll(l.  .'i.'iO. 

Hozelle   v.  Hliodes,    ;!0.    :VA. 

Kozet  V.  McCli'llan.  .VJ.  f,',. 

Hulieiisteln  v.  Crnlkslianks, 

Hiu  ker  v.  Monovan,   2(5. 

Hueker  v.  R.   <"o.,   2:"".. 

Hiurely    ('.  Ins.    Co..   214. 

Hninpf  V.  liarfo.   ,s. 

Hnn.van  v.  Calilwell.    .Ti2. 

Huscli   V.  Pavenport.  .'{41. 

Husliforth  V.  Iladlield.   20,  215. 

Htissell   I'.  Kavler.    17. 

Hnssell  v.  Killniore.   70. 

Hussell  V.  Hester.   .".S. 

Hnsseil   V.  Koehler.   40,   43. 

Hussell  V.  NMenian,    12!). 

Hussell  J).  H.   Co..   220. 

Hussell   V-  Roberts.   ;?44. 

Huss<>ll  V.  Tel.  Co..  .S.-.I. 

Hussell  Man.  Co.  v-  Steam.    Co.,    203. 

638 


200. 

Kl. 

i!i;{. 


278,  287. 


80. 


IlutKers  V.  Lueet.    10,   22. 

H.van  V.  (illnier,  :<l(). 

Ryan  v.  R.   Co.,  22(1,  ;t:!,s,  ;(n. 

s. 

Saelirowitz  v.  R,    Co..   .^(Vl. 
Sal'e  l)eposlt  Co,  ti.  I'ollock,  13.  ,^()  45 
Sa;.'er  v.  K.  Co..  127.   l;iT.  140,  Xw! 
Sales   V.  West.   Slajie  Co.,  2A\. 
Sallee    v.  .Vrnolil,   l,"i. 
.Saltonslall   v.  Stocklori,  .'!4(). 
S.Mllns   |!.   i;verelt.    2(1.    211.  " 
Sallus  V.  (lerrlii,  (11. 
S.iMims   V.  Slewni't,   .S.'i. 
Siinipsoii   (t.  (;.'i/./,;nn.    100. 
Sampson   v.  Hand.    12. 
Samuel   i>.  Cliene.v.    2(Mi. 
SamiU'ls  V.  .Mel>('.nald,   Ti.    10. 
SiinnicOs   V-  R.    Co.,   '.'2. 
SamneNon   v.  .Mjuinu'  Co.,  ,'!01, 
San  Antonio  iV-c.  H.  Co.   v.  Ileiuielt 

:i41. 
San  Antonio  iVc.  R.  Co.  u,  I. on;;,     'j.n 
Sanclie/,   v.  H.    Co.,    ,'(41. 
S.lnders    V.   Uelsler,    .'Ml, 
S.inilers  V.  Slinirl,  .'Vl'.), 
Sanders   1?.  Yoiini,',    S4, 
Sanderson   i',  l"ra/ler,  311. 
Saiid.vs  V.  I'lorence,  7,'. 
Sanforcl   v.  I!.  Co.,  SO,  01,  ll,',  l.l.S,  162, 

21  s,  •_.-,-.  2.-.S,  1>1(7,  20s. 
S:in(iuer  v.  R.    Co.,    2(M!. 
Saiitee,    The,    1,'.,S. 
Santer  v.  It.    Co..   ;!I7. 
Saralok'a.  The.  ISO.  ;(,",«. 
Sarbeeker  j-.  State,   211. 
Sargent   v.  <!ile.    H, 
Sar;,'ent    v.  Slaek,   Aft. 
Sartrent  v.  I'sher,   20. 
S.'issen   V.  <"lark.    77.    78,    7<),   ;!7('>. 
Sassl(>r  i>.  Clark,   7(1. 
Satterlee  v.  <;ro!it,   s;?. 
Saunders  v.  It.   Co. 


S;i\annali  iVe.  It 
Savannah  .Vc.  It 
Savannah  Ac.  R 
Savannah  iVc,  It 

lot). 

Savannah  iV<'.  It 
Savannah  «V<'.  It   ' 
Save.v,  The,   I112, 
.Sawyer  v.  Corse, 
Sawyer  v.  It.  Co. 
Seaife  v.  Fari-anl 


Co. 
Co 
Co. 
Co. 

Co. 


201.   .'MO. 
V.  lioiiaud. 
V.  Urvan, 
V.  Collins, 


2;!s:. 
21l',l. 
10(1. 


V.  rritcharil, 

V.  Sloat,    200. 
V   Wileo.\,    131. 


.•(.'iO. 

2;tl,   340. 
101. 


Scaling  V.  I'ull.   l>al.  Car  Co.,  325, 

328. 
Seanmoii  v.  Chicago,    ,301. 
Schaelfer  V.  It.    Co.,    ,3.3,'). 


SehelTer  v.  R.    C 


.347 


Scheiick  V.  I'ropeller    Co..    200. 
Sehenik   V-  Strong.   21. 
Sehepeler  v.  Klsner.   (12. 
Schepers  v.  It.   Co.,   .308. 
Schermer  v.  Neurath.    33. 
Sehleffelln  v.  Harvey,    i23,    120,    162, 

10(1. 
Sfhl£f  V.  II.  Co.,  101. 


I 


!l 


TAHI.R    OF   TASKS   riTEIl 


The  KcfuronceM  are  to  Sections. 


;ni. 


0. 

I'k.  ia,  ;i(i,  .Jr. 
1 10,  xm. 
.  zn. 

IK). 
I. 


10. 

.  ;toi. 

,  Itcniicll, 


I'lillK. 


L'.'U. 


m,  V,H,  162, 


7!),  :;7o. 


.140. 

(iiiiiiid,  'j;ts. 

irviiM.  lUili. 
(liliiis,  1(K). 
I'ilchiird, 

lout,    i:(Xi. 


10. 
Co.,  325, 

„    200. 

13,    120,    162. 


HrlimMt  t».  niood,  -27.    lo,    17.  .'{28. 

Scliiiildt  V.  U.   <'<>..   ■■(!  I. 

Si'hiH'IdtT  i>.  KviuiH.    102.    110. 

S,  liiii'ld.T  V.  1'.   S.,  .'(H. 

S<liolli'ld  V.  U.  Co..  11'^. 

Sclioli'H   V.  Ac'Ucrlnnd.    201. 

S(ln)<)l  lilslrlct  I'.  K.   <'(,.,   KiV. 

ScliopniiiM   I'.  K.   *'•>.,   2»\.  2UU. 

Sclndi'di'r  V.  H.   *'i>..    lo;!. 

Sclirojcr  V.  I-yiicli.  ano. 

S(diiH'niiaii  V.  U.    t'o.,   :U1. 

.S.ImlhT  V.  Adiiin.'<    IC.\.    Co.,    10.1, 

Siliwiiriz  V.  I'lUT,   40,   47. 

Scliwiiriz  V.  (llliiiorc.    .'{Ol. 

S<h\Viirl/.  V.  Ti'l.    Co..    .•{20. 

•Scliwi'i'lii   V.  Mi'Klc,  40,  47. 

Scotliorii  I'.  K.  Co..   iih;, 

S.oll   V.  ISall.   ^ic.   Stciun.   Co..   Ki'.t. 

Scolt   V.  Cniiii'.    22. 

Scott  f.  CrcwH.   ."«.S. 

.Scott  V.  Nut.  Ilk..  :!o.  :{;t. 

.Scovill  V.  tirilllth.   201. 

.Scriiiitoii  V.  Hii.vtcr.  ;;m. 

Scniiitiiii   V.  Kjinncrs'    Hiiiik,   1,'il. 

SciMiKHn  V.  U.  Co,,   1(;2. 

.Sciir.s   i>.  Hiistcni    It.    Co.,    2.')8. 

Sciirs  J'.  \\'\\\h.  2ti. 

Sclll'^'CIlt    )'.  fiilcs,    17. 

Sciiric  V.  KiivcricU.     4;". 

Sciirlcs  V.  Miiiiii  Hoiidolr  Car  ('o.,  .".21 

Sciivcr  V.  U.   Co.,  22(!. 

.Second   c.  It.    Co.,   .'ill. 

.SiM'oiid    Nut.    IJk   V.  (Jccuji    Nat.    Ilk.. 

.•tl.   :,s. 
Sccor  V.  U.   Co..  22.'). 
Sccvcr.s  V.  Ciibi'l.  i;i. 
Scfjcr  II.  Itiirkliiimstcad,   .'!47. 
Sci^cl  V.  Kiscii.  ;iii7. 
Self  V.  Dunn,  s;i.  dm. 
S('ll;;nian  v.  Ai'nii.|o.  S4.  121.  120.  110 
•Seller  V.  The    rac'ltle.    140.    170. 
Selniii  \-c.  It.  C(i,   i>,  lintls,    Si,    io4 
Seniple  .Vc.  .Manfj;.  <'o.  v.  Uetwllor, 

Spiiseiibrennei'  v.  Mnttlio\v8,    20. 

Se.i.^luns  V-  It,    »'o..    2!t, 

Sevcr.v   V.  NlclioLson,    2.'?(). 

Sevier  V.  It,    Co,.    2.'i;{. 

Sewiill   0.  Allen.   !!.">. 

Se.vli.pit   r.  It.   Co.,    i;i9,   1,^7.   22."). 

Se.vnionr  v.  Cook.    7.S. 

.Sejnionr  v.  fJreenwood,    2iN7,    207. 

Se.vnionr  v.  It.   Co.,  2.'il,  234,  21).'?. 

Se.vnionr  v.  WycUolT,   S. 

Shannon  i'.  11.   Co.,  227. 

Sharp  V.  (Jrev,    2;i2. 

Shattnck  v.  Uaiid,    320. 

Shaw  V.  Herr.v,    70. 

Shaw  V.  KerKiisoii,   27. 

Shaw  V.  Kaler,    15. 

Shaw  V.  K.  Co.,  4il.  34.5. 

Shaw  V.  Spencer,  ttj. 

SUaw  j>.  ^\■ll.slllre.   70. 

.Shedd  V.  n.  C,>.,  212. 

Sheef  V.  Uiintlnjrdon.    341. 

Slieets  V.  It.    Co.,    244. 

Sheldon   V,  It.   Co.,  340. 

.Sheldon  v.  Itoblnson,  84,  95. 

SUeltou  V.  Freuch,   57. 


"'l.-I.'""   "•  •^'"■'■'•'"oilH   Iicsp.   Co.,   101., 


Sliclton   V.  It,  Cc..,    Ill    ■•II 

«li"Mk    V.     'hlln,    SleMiii,    (■„      ;;:ii 
rrii|ieller  c.,  ;;in^  2W 
I',  l.anrciir,     1,'il, 
l>,  Cjiiirldck.    207, 
V.  .\cw  (^na.v  c,,'.,  2^} 


Sheiik   I 

Sheplimi 

Slici-idiin 

Sheriilaii 

Slici'jdiiii 

•Slicrley    ( 

Shcrhnk 

Sliciiiinn 

Sliennaii 

Shcni.Mii 

Sherrl'l   I 


V.  It,   C, 

'•    liilllliK-M. 

I'.  Alliiii;, 
V.  It.    Co., 
V.  Str:uil. 
V.  Wells, 
'.  Tel.    Co 


-'•>'•',  :ii2,  ;;i;!. 
'-OT.  ::!i>,  ;ioj, 
.■;io. 
2i;."i, 

Co., 
M, 

.'{lit,  ;i.-,o. 
33.  :,:>. 


20!  t. 


347. 


212. 

lly, 


102 


i^liiclils   tl,  Itlackloini. 
Shlelils    V.  Tel,  Co     ;il7 
^liilV   V.  It,   Co,,,  1,-,ii 
Shlppci-   V.  It,  Co,,  112 
Sliocnifl    V.  l!,ille,v,  74,  70,  SO. 
MlociiKiKcr   V.  Ilili/,e,    M 
Shociimker  v.  Kiii«siiiirv     "IKl 
Shrlver  v.  It.   Co.,    lU,'l3l,    l;i7.   .^{7, 

Shnenreldt   v.  .Iinikeniiaii,  211 
Slillliir   I..  K.    Co.,   ;;iy, 
Slinltz  V.  It.  Co.,  207 
Slliley   V.  Aldl'lcli.    70. 
SIdeuji.VS   V,  Todil,   48. 
Sldonliiii,    The,    Hi:!. 
Sicili'iiliiich    11,  Ulle.v,  T>i. 
SicKi'est.  IK  .Vrnol,  k'l. 
Silden    v.  W'illlaiii.s.    1(10. 
Sillies   II.  y„'ine,    .'Wl, 
SliiinioiiH   V.  Urowii,  ;t44, 
Siniimins   i<.  K.  Co.,  ;io!». 
SiiiiinoMs  c,  Sleiuiilioat  Co      231 
Siiiiiiis  II.  It,    Co.,    2:..). 
Simon  V.  Vu[iK  Shnev,   I.'{7 
Siiiion   II.  .Miller,    70." 
Siiiioiis  V.  It.   Co.,   l,-,4,   l,-,u. 
Siiii|isoii  u.  Hand,   lOii. 
Simpson   V.  It.   Co..   ;!4.'i. 
SlmiiMoii  V.  Wrciiii,   10,   22, 
Sims   n.  C;iMliel(l,   .-)1. 
Sims   II.  CInnice,  21, 
Siiicliilr  V.  l'e:ii'son,    17. 
Siiifileion  V.  Carroll,  i;{. 
Singleton   V.  Milliard,    i;{f). 
Sln^'lcion   V.  It.    Co,,    200 
Slordet  V.  Hall,    lii.i.    I2."i, 
Sissoii   f.  It,    ( 'o..    i;mi,    ;;|.-,. 

SItjrre.'ivcs  (..  I'iir rs'    IJiink,    02. 

Six  llniidred  and   Thin.v   Casks,   102, 

Skelley  r.  Kahii,  ,33. 

Skinner   ii.  Mull,   I117, 

Sillier  V.  Mesei-an,  :;oi. 

f'later  c.  It.  Co..  12(1. 

Slaii;,'liler  v.  Creen,    8. 

Sleat  II.  I'dtLr,    i:!;{. 

Sllninicr  v.  Meny,    217. 

Sliiiuerland    11.  Miirse,    22. 

Slocmii  V.  I''iiircliild.   1.30.   100. 

Sloiiifin   V.  It.   Co.,   271.   272,   27.S,   284. 

Slosson  V.  It,   ( '11,,  341, 

Small  V.  Itobiiison.   17. 

Smullumu  V.  Wliilter,  '^22. 

639 


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Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14SS0 

(716)  872-4503 


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f  f— T^ww. 


MP 


TABLE    OF   CASES   CITED. 


m 


The  References  are  to  Sections. 


tii 


c: 

xtM'M 

<- 


r- 

2.r 


Smith 
Smith 
Smith 
Smith 
Smith 
Smith 
Smith 
Smith 


Smith 
Smith 
Smith 
Sim  til 
Smith 
Smith 
Smith 
Smith 
Smith 
Smith 


I!! 


Smedes  v.  Btink,  10. 
Smile.v  V.  Alien,    20. 
Smith  v-  Atliins,  .'il,  .50. 
V.  Hiiiilj,    Xi. 
V.  Urn/.olton,  120. 
V.  Hritish  &e.  Co.,  232,  340. 
V.  Coiilp,   02. 
V.  <  liiimbcrlnin,  205. 
V.  Cliirii,   8. 
V.  Clews.   17. 
V.  Cook.  4.5. 
Smith  V.  Flmlkw,  ISO,  21.3. 
Smith  V.  First  Nat.   l!k.,  33,  332. 
V.  Frost.    20,    40. 
V.  Crcoiiu]).    20. 
V.  lloriit'.    12-..    130,    130. 
V.  lllliisoii,    211. 
V.  Kcyes    72.   74. 
V.  r-il>fni-.v   llonnl,   13,  32. 
V.  Mci'Kfin.  40,  43. 
V.  MilllT,    .'S. 
V.  Mott.    ."".l.    54. 
V.  IMcrce.  S5. 
Smith  V.  ItciKl,   72.   70. 
Sniilh   V.  It.    <'o..    5,    70,    ,>50,    SO,    111, 
i;i(>.  137.  l.'iH,  1.30,  140,  142,  102.  2'll, 
227,  2.32.  2.34.  2Ht.  24.S,  201,  207.  270. 
272,  205,  302,  33S.  340,  341,  345.  347. 
Smith  V.  Scott,    72. 

Si'Wiird,    84. 
Siinnis,  47. 
Slu'iiiicnl,   100. 
V.  Simiuoiis,   301. 
Siiiitli.   .'Ul. 
South.    H.\.   Co., 
Stowiirt,     10. 
Stfoiit.   .''.O.   05. 
Tol.   Co.,   310.   310,   .320 
SmitinT  V.  If.    <'o..    158. 
Smitlnirst  v.  EiImhiikIs,  .50. 
Snioot  V.  \V('t(Miii|il;ii.    341. 
Sm.vii  V.  Nlolon.  121,  122. 
Sinvth  V.  Ci-iii):.  51. 
Siiidor  V.  Adiims    Ex.    Co.,    107,    137, 

147,   140.    1.54. 
Snltlor  V.  (iciss.  70. 
Snow  V.  It.  Co..  100.  230.  2.34,  ,302. 
Sodowsk.v   I'.  Mcl'iirltuid.     33. 
Somors  v.  McLiHiKlillii.   211. 
Solomon  v.  Diiwcs,   200. 
Solomon  v.  It.   <"o..  3(18. 
Solomon  v.  Stoiim.   Co..  201. 
Sonoma  Valli'.v   !!k.  v.  Hill,  50. 
Sotilc  V-  Cnloti    liiiidc,   52,   58. 
Sotiio  V.  Whito,   70. 
Sontcr  V.  Ua.vmorc,  127. 
Southard  v.  It.  Co.,  338. 
SonthcotP  V.  Stanley.    230. 
Sonthfote's  Case.  1.30. 
Sonthonstern  It.  Co.   v.  Thornton,  100. 
Sonlhern  Aiistralian  Ins.  Co.  v.    Han- 
dell,   22. 
Southern    Ex.    Co.  V.  Armlston,),    137. 

130.   140,  201. 
Southern    Ex.    Co.  v.  Caporton,    137, 

140.  1,58. 
Southern  Ex.  Co.  v.  Croft,    211. 
Southern  Ex.  Co.  v.  (^rook,   133,  137, 
140,  155,  193,  105,  200. 

640 


Smith 

V. 

Smith 

V. 

Smith 

V. 

Smitii 

V. 

Smith 

V. 

Smith 

V. 

Smith 

V. 

Smith 

V. 

Smith 

V. 

185. 


51. 


340. 


Southern  Ex.  Co.  v.  IJickHon,   160. 
Southern  Ex.  Co.  v-  Everett,   201. 
Southern  Ex.  (Jo.  v.  Clean,    158. 
Southern  Ex.  Co.   v.  Hess.   84.   104. 
Southern  Ex.  Co.  v.  Ilunnicutt,    1.58. 
Southern  Ex.  Co.  v.  Kdufman,    134. 
So\ithern  Ex.  Co.   v.  .MeVeigh,    105. 
Sotitlieru  Ex.  Co.  v.  Moon,     138,     142, 

102. 
Southern  Ex.  Co.  v.  Newhv.    84,    123, 

1.37,   140,   14'.).   1.55,   100,  335,  3,38. 
Southern  Ex.  Co.   v.  Ptireell.    1.37. 
South(>rn  lOx.  Ci«.   v.  Slieii,    100. 
Soutiiern  Ex.  Co.   v.  I'rcniliart.    3.'1(!, 
Southern  Ex.  (,'0.  v.  Van    Meter,    10.5, 

2110. 
South(>rn  Ex.  Co.   v.  Woinaek.    137. 
Southern  It.  Co.   f .  Heaton.    13S. 
Southern    iV:e.    It.    Co.  v.  Ilenlein,  80, 

1.3.5,   137.  142.  102,  338. 
.'Southern  iVe.  It.  Co.   v.  Maddox.    142. 
SoutlU'rn  iVc.  It.  Co.   v.  Nix.   2.50. 
Sontliern  iVc.  It.  Co.   J».  Kendriilv,  •J,5:i. 
Southern   &e.    U.   Go.  v.  Ilhodes,   2.5.5, 

257. 
Soutiiern  A;,-.  R.  Co.  v.  Rice.    208. 
Southern    Arc.    It.    Co.    v-   Schauffler, 

3((8. 
Southern  &c.  It.  Co.  V.  Singleton,  225, 

312. 
Southern    &c.    R.    Co.  v.  Wood,    111, 

201. 
Southwestern  R.  Co.  v.  Eelder,    202. 
Southwestern  It.  Co.   v.  I'aulk.  .'!il8. 
Southwestern     R.     Co.    v-   Tiiorntoii, 

lIHt. 

Sonthwestern  R.  Co.  v.  Webb,  84. 
South  wick  V.  Estes.    207. 
Spant'ler  v.  Eiclioltz.   43,   47. 
Spears  v.  Iliirtlev.    27. 
Spears  v.  It.   Co.,  OS. 
Speed  V.  H.   <'o..  204,  .301. 
Spence  v.  CliadwicU,    100. 
Spencer  v.  DanKett,  84,  100. 
Silencer  v.  Morjjran,    10. 
Spencer  v.  I'ihlier.    10. 
.Spencer  v.  It.  Co.,  307,  341. 
Speyer  v.  The    Mary    Helle    Koberls, 

337. 
Spice  V.  Itacon,  80. 
Splnetle  v.  Atlas   Steam,  (^o.,   171. 
Spolin  V.  R.  Co..  308. 
Spooner  v.  Manchester.  21. 
Spooner  v.  .Mat toon,  33. 
Spooner  i'.  It.   Co.,  272.  .300,  31.3. 
SpraKue  v.  It.  Co.,   1.37.  1.5,8.  2(i2. 
Spi'MKue  V.  Smith,   203,    295,   2iM>. 
Spra;,'iie  v.  Tel.  Co.,  320,  349. 
Spring  V.  na;,'(>r,  80. 
Sprinj;  V.  Haskell,  345. 
Sproul  V.  IlemmlnKwiiy,  .30<1. 
Sprowl   V-  Kellar,  84,  i21,  124. 
Sjiiirrier  «.  R.   t'o.,   .341. 
Squire  v.  R.    Co.,    102,    109,    137,    142, 

1.50. 
Squire  V.  Tel,  Co.,  321,  340. 


TABLE   OP   CASES   CITED. 

The  References  are  to  Sections. 


state  V.  Adams,  56. 

state  V.  Bell  Teh*ph.  Co.,  323 

State  V.  Bryaut,    36. 

State  V.  Campbell,   242,   256    26" 

State  V.  Carl,  211. 

State  V.  Chauiblyss,  72. 

State  V.  Chovin,   255,  261 

State  V.  GooUl,  261. 

State  V.  KInuey,   257. 

State  V.  Matthews,  72. 

State  V.  Moore,   40. 

State  V.  Nebraska   Teleph.   Co     .'5''.^ 

State  V.  O'Neill,  211. 

State  w.  Overtou,  217,  241,  255  261 
265,  268.  '    ' 

State  V.  Ross,   2.57,  267. 

State  V.  U.  Co.,  89,  92,'  228,  231    2.14 
240,   246,   252,   2n.i  256    295      '         ' 
State  V.  Tel.  Co.  323. 
State  V.  Thompson,  262. 
Slato  Fire  Ins.  Co.  v.  I'almer,  63 
StaUheeker  v.  Combs,   84 
Stager  v.  U.   Co.,  308. 
Staindiffe,  The,  135. 
Stanard    Milllug    Co.  v.  White    Line 

Co.,   loo. 
StPMdlsh  V.  R.   Co.,  262. 
Standish  v.  Steanib.  Co. 
Stannard  v.  rrini'c,  49. 
Stanton  v.  Bell,   33,   35 
Star  of  Hope,    The,   h'?i. 
St.  CI.Tlr  V.  U.   Co.,  204 
Steamboat  Co.  v.  Bason,    , 
Steam.    Co.  v.  Brown,   l'l5 
Stearns  v.  Marsh,  50,  .52    55    61    (!•> 

69.  '       '       '       ' 

Stedman  v.  West.   Trans 
Steele  v.  McTyer,  83. 
Steele  v.  Taylor,    122. 
Steele  v.  Townsend,     1.37 

162,  3,38. 
Steclman  v.  Snylor,  213. 
Steere  v.  Benson,  68. 
*^l';*'(5«  g^Vj^iverpool    Steam.    Co.,    109, 

Steigei  V.  U.    Co.,    1.39 

Stelnweg  v.  B.  Co.,  139.  148,  162,  236 

Stelnman  v.  Wllkins,  27 

Stephen  v.  Smith,  2.")7,  261 

Stephens  v.  Va\iKhan,   23 

Stephens  &c.  Trans.  Co.  i;   Tucker- 

nian,    123. 
Stephenson  v.  Hart,    206. 
Stetler  v.  K.    Co.,    291. 
Stevens  v.  Dawson,   296 
Stevens  v.  Hurlburt   Baidj,    62. 
Stevens  v.  K.  Co.,  40,  215,  340. 
Stevens  v.  Woodward,    7« 
Stevenson  v.  I'rlee,  22.  , 

Stevenson  v.  I'ull. 'I'al'.  Car  Co.,  .S-'S 
Slevenson,  The  .1.  C,  ,338 
Stewart  v.  Bremer,    94. 
Stewart  V.  Crowli'v.    l.'!4 
Stewart  v.  Davis,  'lO,    21     ,55 
Stewart  v.  Head,  78. 
Stewart  v.  Frazler,  22    29 
Stewart  V.  Mer.  Dls.  (io.,'i96.  205 
los?  209."  "•    ^°-   ^^'   ^^'   *^2.   234, 

43 


259,  262. 


121,    166. 
55,  61, 
162. 


Co 


148,     161, 


St  es  V.  Davis,  131,  230. 

S      niKs  V.  Gibson,  26. 

M  llHon  V.  R.  Co.,  314 

St  msou  V.  U.  Co.,  272  273 

Stiuson  V.  R.  (Jo.,  19o'   192    ois    vri 

S  .  John  V.  O'Cou'neli  -53    •  ^^'  ^^• 

St.  John  V.  Ex.  Co.,  101,  103,  133   180 

St'  T^''"  ,*-.^""   Santvoord,   103    107 

^t.  .Toscph  &c.  R.  Co.  V.  Hedee     -"^ 

St.  Losky  V.  Davidson    oT  laf  58 

^t.Louis&c.I„s.Co.  ;.B."cof  103, 
St.  Loula  Bk.  V.  Ross,   51 
St.^Lo«is   &c.    R.    Co.  V.  Berry,   278. 
St.  Louis  &o.  R.  Co.  V.  Bono,  169 
254:3]V^'-'-"-^«-''-^a»trX234, 
R.  Co. 


R.   Co. 


St.    Louis  ii^ic 
,  148,  160. 
St.    Louis   &( 

297. 
St.  Louis  &c.  U.  Co 
St.  Louis  ^:c.  It.  Co 
St.  Louis  &(;.  It.  Co. 

St.  Louis  &c'.  R.  Co.  V.  r  rceman     '■ 
St.  Lou  s  &(..  U.  ('o.  ^.  H.-U11V   V; 
S  .  Lou  s  &c.  R.  Co.  I.  nltg'    5^- 
^..  Louis  &O.U.C,.  v.mn    i-y 
St.  Louis  .Ve.  R.  Co.  v.  Knight     182 
St.  Lou  s  &c.  R.  Co.  V.  Larned    101 

137:  H2,  ^,  "i7.''°-  "•  "-''''''   ««• 


V.  Cieary,   137, 

V.  Dalby,   201, 

Donnan,    86. 

Fluley,   269. 

V.  Flauugau,     26, 

V.  Frepnian,    .347. 


St.  Louis  ikv.  \i.  Co 


V.  Miller,   290. 


107. 


St.  Louis  Ao.  R.  Co.  V.  Montgomery, 

St.  Louis  &c.  R.  Co.  V.  Murray,  .308 
St.  Louis  &c.  R.  Co.  V.  Myrtle,  266 
St   Louis  ,^,.I{,,„    ^.  j.,,„|     ■   ^^ 

io:i    137      '■   "•   '""•  "■  I'^P*^--'  101. 
St.  Louis  &c.  R.  Co.  V.  Rice,   304 

i62,"l73  "■    *^"'  *•  '^"'"'"''   "^• 

St.  Louis'ic.  R.  Co.  V.  South,    261. 

St.  Louis  A:c.  R  Co.  V.  Velarms,     232. 

St.  Louis  &(..  U.  Co.  V.  Weakly 
108,    142,    147,   3.38       "'"'^'y' 

St.  I'aul  V.  Seitz,    301. 

St.  I'aul  &e.  l{.  Co.  V.  R.  Co.,  42 

Slocklon  V.  Frey,  231,  340 

Sloekton  v.  Xell,    3-W 

Stoddard  v.  Kimball,  .58. 

Stoddard  v.  R.  (!o.,  162. 

Stokes  V.  Frazler,   62,   63. 
Stokes  V.  Saltonstall,   218,  340 

Stokes  V.  R.  Co.,  2,32. 

Stoue  V.  Brown,  .57. 

Stone  V.  Farmers'  &o.  Co.,  88 

Stoue  V.  Ililks,  297. 

Stone  V.  R.  Co.,  241,  242,  256 

Stone  V.  Waitt.  2(KI, 

Sloe-.  V.  Wyatt,  112. 

Uioneniau  v.  R.   Co.,   271,  278, 

Storer  v.  (iowen,  11,  .33. 

Storr  V.  Crowley,    201. 

Storrs  V.  Utlca,  301. 

641 


PW^ 


"T 


I ' 


I'  > 


Ji 


1  n 

it     1  1  i    1  1    1 

'JO 

c: 

CO 

'J 


3»: 


TABLE   QF   CASES  CITED, 


The  References  are  to  Sections. 


stover  V.  R.  Co.,  309. 

Stowe  V.  R.  Co.,  202. 

Strause  v.  Tei.  Co.,  .U". 

Strahoni  v-  Union  Stock  Co.,  27,  203. 

Stricklaud  v.  Turner,  51. 

Strolmi  V.  K.  Co.,   347. 

Strohn  v.  K.  Co.,  115,  148,  152,  15-1, 
15'.',  204. 

Strong  V.  National   Hk.  Assn.,  .52,  fi2. 

Strong  V.  K.    Co.,    I»i0. 

Strou.ss  V.  U.  Co.,  278,  284. 

Stuart  V.  Hlgler,   Gl. 

Stuart  V.  ISritLsli  &c.  Steam.  Co.,  181. 

Stuart  V.  Tel.    Co.,   .^50. 

Sturdlvant  v.  U.  Co..  :i07. 

Sturgcss  V.  Tli(>    (\)lunil)us,    170. 

Sturgeon  v.  K.  Co.,   137,   102. 

Sue,  Tlie,  2«.'>. 

Sullivan   V.  U.  Co.,  2.31,  207,  .S40. 

Sullivan  V.  Tliompsou,    101,    102,   201. 

Sulsbacker  v.  Dleklc,  .SOI. 

Sultana.   The,  v.  Cliapniun,  148,  201. 

Summers  v.  U.  Co.,  307. 

Summitt  V.  State,   204. 

Sumner  v.  Ilanilct,   51. 

Sumner  v.  R-   Co.,   110. 

Sumner  v.  Walker,    100,   110. 

Sunbolf  V.  Alford,  2.->0. 

Sundav  v.  (iordon,  2.")0,  253. 

Sunderland  v.  Westeott,    l.'iO,    338. 

Sun  Mut.  Ins.  Co.  v.  Miss.  Val.  Trau. 
Co.,  1(M>. 

Sutherland  v.  Ingalls,    70. 

Sutherland  v.  R.  Co..  20(>. 

Sutherland  v.  Westeott,    150. 

Sutro  V.  Fargo,  .338. 

Sutton  V.  R.  Co.,  213.  230. 

Swanison  V-  R.  Co.,  230. 

Swan  V.  Hournes,    82. 

Swan  V.  R    Co..  201. 

Swann  v.  Urown.  45.  40. 

Swartz  V.  Houser,    31. 

Swasev  V-  K.   ('o.,  .50. 

Sweet  V.  Barney,  84,  207. 

Sweet  V.  Brown,   54. 

Swe(>tland   v.  Tel.    Co.,   310,   320,   342. 

Swift  V.  Moseley,    1,5,    17. 

Swift  V.  Tac.  Mail  S.  S.  Co.,  100,  150. 

Swigert  v.  Craham,   42. 

Swindler  v.  Hilliard,  84,  139,  161,  109, 
337,  3.3S. 

Swire  V.  Leaeh,  08. 

Switzerland  Marine  Ins,  Co.  V.  Louis- 
ville &c.   R.  Co.,  273, 

T. 

Taber  v.  U.  Co.,  2.54. 

Taft  V.  <"liurfl-,  02. 

Taft  V.  Tlede,   344. 

Talby  v.  1-.  Co.,  310. 

Talty  V.  Freedman'.s   Sav.   Inst.,   .52. 

Taneil  v.  Seaton.  15.  3.3. 

Tarbell   v.  R-  Co.,  218,  219,  224. 

Tarliell  v.  Royal  E.x.  Co.,  201. 

Tardos  v.  R.  Co.,  102,  1.37. 

Tattersall  v.  Nat.  St.  Co.,  139. 

Tatuiu  V.  Sharploss,  15. 

642 


Taussig  V.  Shields,  40, 

Taylor  v.  Clieevor,   59. 

Taylor  v.  Collier,  :!i."). 

Taylor  v.  Downey,    72,   70. 

Taylor  v.  Llveriiuol    &e.    Steum.   Co., 

ISO. 
Taylor  v.  Monnot,  72,  79. 
Taylor  v-  R.    Co.,    101,    MS,    109,    137, 

148,  1.57,  104,  231,  235,  '244,  294,  .341. 
Taylor  v.  Seerlst,  47. 
Taylor  v.  Wells,  214. 
Teall  V.  Felton,  .3.30. 
3'egler  V.  Slilpinan,  211. 
'I'enn.  &e.  R.  Co.   v.  Nelson,    1.37. 
Telegraph  Co.  v.  Criswold,    319.    312. 
3'elegrapli  Co.   v.  Taylor,   319,   349. 
Teniiery  v.  I'ipplngcr,   340. 
Tennessee   A:e.    R.    (.o.    v.   .Johnston. 

1.37. 
'I'erre  Haute  &e.  R.  Co.  v.  Buck,     254. 
Tcrre   Haute   &c.    R.   Co.  v.  Jaekson, 


2'.IS. 
Terre 

257, 
Terry 
Terry 


R.   Co.  V.  Vauatta, 


Haute  &c. 

347. 

V.  .lewett,  2.34. 

V.  R.   Co.,   241,  208. 

Teutonia  Nat.  Bk.  v.  l.oeb.  53. 
Texas  Ex.  Co.   v.  ScotI,    137. 
Texas  iVc.  R.  Co.  v.  Alexander,    253. 
R.  Co.   V.  Best.   230. 
R.  Co.  V.  Black,  2(!0. 
R.  Co.   V.  Bond,  2.51). 
R.  Co.  V.  Caldwell,    142. 
R.  (^).  V.  Capps,    272,    278, 


Texas  A:c, 
Texas  A:(". 
Texas  \c. 
Texas  iVc. 
Texas  iVe. 

2S4. 

Texas  &c.  R.  Co.  v.  Cornelius,  297. 
Texiis  iV;c.  R.  Co.   v.  Davis,   1.37. 


Texas  vV:c 
Texas  i\;c. 
Texas  \c, 
3"exas  <V:c, 
Texas  iVc. 
Texas  iV:c. 
Texas  iVi', 
Texas  iVc. 


I{.  Co. 
R.  Co. 
R.  Co. 
R.  <"o. 
R.  Co. 
R.  Co. 
R.  Co. 
R.  Co. 


Dupii'c,    1.37. 
HamiM.    i;!7.    1.5S. 
.lacksoM.    1.5S. 
.McCilviirv.  3()S. 
Morris,    1.5S. 
.Murphy.  ;;(is,  341. 
.Nicholson.    315. 
I'arrish,    103. 


Texas  I{.  ("o.   v.  Rogers,    lol 

Texas   iVc.    R.   (lo.  v.     .Scrivener,   UK), 

IIS,    1.58. 
Texas  iVic.  R.  Co.   v.  Volk.   .34!. 
Texas  Ac.  R.  Co.   v.  Younglilood,     1.5S. 
TIniti'hi'r  v.  Harlan.  2<i. 
Tliayer  v.  Dwight.   7(1. 
Thayer  v.  Hnliliinson.  15. 
Thayer  v.  II.   Co.,    137,   1.39,  231. 
33iickst()n   r.  Howard.   70. 

Mini  .Vat.  r.k.  v.  I'.ovd,  .5,5,  ,58. 
Tlilrleenth  St.  R.  Co.   v.  Boudrian, 

,30(!. 
Thomas  v.  R.   Co..   119,   1.37,  201,  204, 

20(!,   291,  293,   294. 
Tlioiiias  V.  The    Morning   Olory,    172, 

3.3S. 
Thomas  &e.  Mfg.  Co.  v.  R.   Co.,  345. 
Thompson  v.  Dolliver,   70. 
Thompson  v.  Duncan.    .341. 
Thompson  v.  Fargo.   211. 
Thompson  v.  Harlow,    42. 
Thomi)S()n  v.  I.acy.  72.  73,  327. 
Thompson  v.  Toland,  .52,  .57. 
Thumpaou  v,  i'atrick,   70. 


TABLE   OF   CASES   CITED. 


The  References  are  to  Sections. 


Co.,    158,    211,    250, 


70. 

.   Steam.  Co., 


li'S,   lOS),  137, 
.  •M,  21)4,  341. 


son,    1,37. 
old,    ;nO.    342. 
r,   .'{rj,  349. 
340. 
V.   Johnstou. 

V.  IlucU,     254. 
!o.  V.  Jnckson, 

■o.  V.  Vauattii, 


G8. 
)ol),  .53. 

137. 
Kiiiidrr,    2,53. 
t.   231). 
i-k,   2(1(1. 
il.  2,5(i. 
iwoll,    142. 
ips,    272,    278, 

iit'lliis,  207. 
is,   137. 
ii't'p,    137. 
mil.    137.    1,-8. 
csciii,    15,S. 
iilviirv,  ;i(lS. 
ris.    i'r,s. 
pli.v.  ;i(l.s.  .341. 
I'llsoii,    345. 
rish,    103. 
101. 

crlvi'iiiT,  loo, 

t.   341. 
iiKl)Iiioa,     158. 


15. 

l.'iO,  231. 
('.. 

55,  58. 
Houilriaii, 

l.'i7,  201,  204, 

r   Glory,    172. 

R.   Co.,   .34,5. 

0. 

41. 


[3,  327. 

57. 
), 


Thompson  v.  H 

253   341. 
TUoiupsou  V.  Tel.  Co.,  .'i20,  350. 
Tlioiupson  V.  Scott,  205. 
Tliouiii.son  V.  Ward,   327. 
Thoruo  V.  Dcas,   1(». 
TUorogood  v.  Itryau,   .315. 
Thorogood  v.    Mar.sli,  l:i2. 
ThoriK'  V.  H.   Co.,   251,  203,   298 
Thrall  v.  Lalhroi*,    ^>-i- 
Three   liuiidred   &   EigUteeu   Toils  of 

Coal,  90. 
Thrift  V.  Voule,   172. 
Thuiuau  V.  U.  (;o.,  295. 
Thurman  v.  Wells,  88." 
Thurston  v.  U.  Co.,  223.  224,  267 
Tlbbetts  V.  Flandern,    51 
Tibby  V.  U.  Co.,   137,  245,  247 
Tieruey  v.  U.    Co.,    170. 
TIndall  v.  Tavlor,   211. 
Titaiiia,  The,   l(i4,   i(j(j. 
TItsworth  V.  WliineKar,  47. 
Tobiu  V.  U.   Co.,   230,  234. 
Todd  V.  l'"igl('y,   3,S. 
Todd  V.  U.  Co".,  225,  24(>    .3(17 
Toledo    &c.    li.  Co.  v.  Baddeiey, 

Toledo  &c.  R.  Co.   v.  P.eEL'.s     '"'5 
340.  — ' 

Toledo  &c.  R.  Co.  v.  Ilevin,    .341 
Toledo  ite.  U.  Cf).   v.  I'.raiuiagaii. 
Toledo  &<•.  U.  Co.   V.  HrouUs,  225, 
Toledo  iV-c.  U.  (Jo.  v.  (inisli,    2.34' 
Toledo  U.  Co.   V.  IliUinimnd,   272 


2.53, 

2.32, 


341. 
200, 


V. 
V. 
V. 
V. 
V. 
V. 
V. 


Ilarnioii,   297, 
LocUhart,   KXJ. 
MeDonoiiKh,  244. 
Maine,   2.34. 
•Meriiaiu.   103. 
I'aiterson.   2(10. 
\Vri;,'ht,  257,  2(11. 


Toledo  >Ve.  U.  Co. 

'I'oledo  iViu.  U.  Co. 

Toledo  »\cc.  U.  Co. 

Tole<lo  A:c.  U.  Co. 

Toledo  Are.  U.  Co. 

Toledo  iV:c.  It.  Co. 

Toledo  iVc.  U.  Co. 

Tohnan  v.  It.   Co.,   341. 

'J'ombler  V.  Koellinjr,    ■^■> 

Tommy,  The,  1(!|. 

TompMns  v.  .Sallmar.sli,  .33 

looker  V.  (Jormer,    1S5,  205. 

Torpey  v.  It.    Co.,   225. 

Torpey  v.  Willlnm.s,    272. 

Torrey   v.  Harris.    57. 

Totisey  v.  Itoberts,   329. 

Towiimla  (\)al  Co.   t>.  Ileeman.    297 

lower  V.  It.   Co..   112.   1.35,  289,  30) 

lowle  V.  Itaynumd.  27. 

Towii.^iend   v.  .N'ewell,    27 

Towiisend  V.  K.   Co..  244    2.58 

Towsoji  v.  Ha^-ro     de     Craee 

(4,     10. 

Traey  v.  r'nll.   I'al.  Car  Co.,  ,32.5, 
1  raiy  v.  Wood,   .3.3. 
Transportation  Co.  v.  Downer 

3.38,  340. 
Travers  v.  R.  Co     298. 
Travis  v.  Thonips.ni,    215. 
Treailwell   v.  Davis.  <!,8,  70. 
I'readwell  v.  Whittler.  .329. 
Trelber  v.  Hnrrows.    79. 
Trent  Xav.  Co.  v.  Wood,  84,   123. 
TrlKj;  V.  R.  Co.,  340. 

Troitluger  v.  R.  Co.,  241. 


Bank, 


100, 


TrowhridKe  v.  Chapln,    115. 
liowl.ridKe  v.  .Sehrelver    14 
iroy  >V:e.  It.  Co.  v.  Kerr,'2!)(i' 
irue  V.  I'el.  Co.,  319,  .320   349 

Triie.x  V.  II.  Co..  .3(17 
1  rnst  V.  I'irs.soii,   7    a; 

Trustees  (,.  HriKlitoii  .Stock  Yards   2(! 
1  llckej'  (I,  U.    Ci,      204 

Tucker  V.  Wilson',    (i' 

T„ckeri,Kin  V.  .Slepheus     .>„.,     Trans. 
'  "..   n,(>, 

'I'lidor  V.  Lewis,  33. 

Tueily  V.  Tlionias,    12 

Tiiiiucil  V.  I'cltijohn.  '9,5. 
i  iinncy  V.  U.    Co.,    22(1 

Turner  v.  llutl',  201.  " 

Turner  v.  It.  Co.,  ]].-,  2.34   295    .348 

'Iiirncr  d.  Tei.  Co.,  ;{21,  31"    .3'49 
I  iirner  v.  Tlie  Ill„rk    Warrior,  338 
I  nruey   v.  Wilson,  .S3,   1(l(i    .3.3,s 

J  urraiiture  v.  K.  <'o     47    ' 

Tiirrell   v.  Crawlev,  215  ' 

Tullle  V.  It.   Co., '347 

Twoniley   i».  U.  Co.,  .308. 

TyKcrt   V.  The  Slnue(;kson,  337 

lylcr  V.  AU'rci'    .3.30 

T.vier  V.  Tel.   C,,.,  310,  .319,  ;,}o_  ^^,j^ 

Tyly  V.  MoiTicc,   13.3    ]4'> 
Tyrrell  v.  It.    Co.,   2.33 
Tysen  v.  -Moore,   ICd,  .338. 

u. 

I'llman  v.  St.nte,    327 

rimer  v.  T'lmer,  1(1. 

I'iricli  V.  It.  Co..  247,  248 

rmliuif  V.  I!ass"ll,  45. 

fnion  Hunk  v.  Liiird,    53 

rni<m  lliink  v.  Itolicrts,  (18. 

I'nion  Ex.  Co.  v.  tiraliani,      90,      137, 

I'nidn  Ex.  Co.  v.  Shoop.    102 
I  nion  .Mut.  Ins.  Co.  v.  K.      Co.       140 
102.    1(1(1.  "  ' 

J'liion  I'vic.  a.  Co.  V.  Hand,  2.33,  .'M7. 
It.  ('o.  V.  Ilause,  .3(»1. 
It.  Co.  V.  Hurl,    102. 
It.  Co.  V.  Kalluher.   293. 
It.  Co.   V.  .Nicliols,    22,5. 

,, If-  Co.   V.  Itieycl,    205.  f 

I  nion  Steam.  Co,  v.  Knap|),    202 
I'nioii  Trust  Co.  v.  Itigdon,   .58. 
I.  S.  V.  lic'liau.  344. 
S.  V.  IIooo,  55. 
.'<.  V.  Ncal,   55. 
S.  V.  I'ower,  8.5.  ICl. 
S.   V.  Yukers,  332. 
.S.  Ex.  Co.  V.  Bachman 

S.  E.x.  Co.  V.  Buclijinan 

.<<      lOv      rV,       „,      LI..!. 1, 


T'nion  i'(:c 
I'nion  iVc 
I'nion  \:c 
Ciiion  iV<' 
I'nion  ,v 


iJ-,'^J''X-  Co.  V.  Bachman,     I.37.     142, 

TI.  S.  E.x.  Co.  V.  Buclijinan,    84 
I'.  .S.  Ex.  Co.  V.  Haines,  101,  ion    108 
'.  .S.  Ex.  Co.  V.  Harris,    1.37.    1.5,S 
XI  S.  Ex.  Co.  V.  Keefer.    1N5. 
T'.  S.  Ex.  Co.  V.  Root,    205. 
I'.  S.  Ex.  Co.  V.  Hush.  101. 
U.   S.   Tel.  Co.    V.   Gilderslecve,    317 
319,  342,  .349. 


643 


TABLE    OF   CASES   CITED. 


The  References  are  to  Sections. 


m 


M 


CO 

c: 

CO 


fT"" 


287, 


,  338 

155. 
131. 


IT.  S.  Tel.  Co.  V.  Tel.  Co.,  316. 
U.  S.  Tel.  Co.  V.  Wenger,   340. 

V. 

Vail  V.  R.   Co.,  120. 

Van  Balaam  v.  Dean,    212. 

Van  Blareom  v.  Uroudwuy    Bank,   63, 

57. 
Van  Busklrk  v.  I'uriuton,  215. 
Van  Buskirk  v.  Uoberts,    21)1. 
Vance  v.  Throckmorton,  72,  74,  76,  81 
Vanderbllt  v.  Turnpike  Co.,   207. 
Van  Hern  v.  Taylor,    106. 
Van  Horn  v.  Kermit,    272,    286, 

280. 
Vankirk  v.  U.  Co.,  241,  200. 
Van  Ostran  v.  K.   Co.,  234. 
Van  Santvoord  v.  St.  John,  95 
Van  Schaak  v.  North.  Trans.  (,v 
Van  Syckel  v.  The   Ewiug,   100. 
Van  Winkle  v.  Adams  E.\.   Co., 
Van  Winkle  v.  V.  S.  .Mail  Co., 
Van  Wycks  v.  Howard,   70,   81. 
Varble  r.  Blgley,   40,  85. 
Vaugl  an  v.  0.50  Ca.sks,  102,  170. 
Vaughan  v.  Watt,  00. 
Vauglmn  v.  Webster,   13,   22. 
Vedder  v.  Fellows.   255.   262. 
Veislan  v.  Lewis,  17. 
Venner,  The,  182. 
Verner  v.  Swcltzer,   83,   84,    l30,    154, 

240,  335,  337. 
Vernon  v.  DeWolf,    55. 
Verrall  v.  Koblnson,  131. 
Vick  V.  U.  Co..  220. 
Vicksburg  v.  lleunessy,    .341. 
Vlcksburg  Co.  v.  U.  S.  Ex.  Co.,  06. 
Victor  V.  U.   Co.,  308. 
Vigo  Agricultural  Soc.  v-  Brumflel, 

13,   32. 
Vincent  v.  Cornell,   21. 
Vincent  v.  Uather,   13,  40,  47. 
Vluceuto  T.,  The,  338. 
Vincenzo  T.   The,   182. 
Vinio  V.  Steam.   Co.,  206,  223. 
Vinton  V.  It.    Co.,   207. 
Virginia  &c.  R.  Co.  v.  Sanger,         233, 

301. 
Virginia  &c.  R.  Co.  v.  Sayers,    137. 
Virginia,   The,  v.  Kraft,  21.5. 
Vivid,  The,  .338. 
Volunteer,  The,  215. 
Vose  V.  U.   Co.,  230. 


w. 


Wabash  Cannl  Co 
Wabash  &c.  U.  (^o. 
Wabash  &c.  R.  Co. 
Wabash  kc.  H.  Co. 

101,  106,  102. 
Wabash  &c.  R.  Co. 

86.  130. 
Wabash  &c.  R.  Co. 
Wabash  &c.  R.  Co. 
Wabash  &c.  R.  Co. 

208. 

644 


V.  Mayer,   .341, 
V.  Black.    158. 
V.  Brown,  1,30, 
V.  Jaggerman, 

V.  McCausland, 


1.58 


V.  I'eyton,  201. 
V.  Pratt,   1.35.  162. 
V.  Rector,  227. 


Wabash  &c.  R.  Co.  v.  Savage,  200. 

Wabash  &c.  R.  C;o.  v.  Wallace,  304. 

Wade  V.  Leroy,  347. 

Wade  V.  Thayer,  75. 

Wade  V.  Wheeler,    112. 

Wadsworth  v.  Alcott,   44. 

Wadsworth  v.  Tel.  Co.,  318.  350. 

Wadsworth  v.  Thompson,   02. 

Wagner  v.  U.    Co.,   206. 

Wahl  V.  Holt,   101,   104. 

Waite  V.  <iilbert,    345. 

Wakefleld  v.  R.   Co.,  242. 

Wakemau  v.  (iowdy,   58. 

Walcott  V.  Keith,   51. 

Waldron  v.  R.   Co.,  278. 

Walker  v.  British    Guarantee    Assn., 

40,    44. 
Walker  v.  Jackson,  143. 
Walker  v.  R.  Co.,  225,  241. 
Walker  v.  Skipwith,  83,  84,  137,  140. 
Walker  v.  Staples,  51,  70. 
Walker  v.  R.  Co.,  340,  347. 
Walker  v.  Tel.  Co.,  310. 
Walker  v.  V'iikinson.    17. 
Wall  V.  Live'.ay.   340. 
Wallace  r.  Ai    Sam,    ,344. 
Wallace  v.  Ciinady.  30. 
Walloce  V.  Clayton,    120. 
Wallace  v.  Long.    107. 
Wallace  v.  Matthews.  00.   137,  140. 
AVallace  v.  Saunders,   137,   140,  162. 
Wallace  v.  R.   Co.,  206 
Wallace  v.  Vigus.  120,  345. 
Waller  v.  Parker.   40. 
Walling  V.  I'otter,  72,  74.  .327. 
Walpole  V.  Bridges.    121. 
Walllngford  v.  U.  Co..  130. 
Walsh  V.  I'orterUeld.  70.  80. 
Walsh  V.  R.  ("o..  220,  22;),  250.  .346. 
Walsh  V.  The  Wright.  272,  280. 
Walston  V.  .M.vers,   85. 
Walter  v.  Smith,  60. 
Walton  V.  R.   Co.,  207. 
Wann  v.  Tel.  Co.,  316,  317,  310,  .320. 
Warburton  v.  R.    Co.,   2.30. 
Ward  V.  R.   Co.,   .306.  345. 
Ward  V.  Vanderbllt,  2.50.  201. 
Ward  V.  Ward.   70. 
Warden  v.  Crcer.   84,  130,  152. 
Wardle  v.  R.  Co.,  260. 
Ware  v.  Canal  Co..  207. 
Ware  v.  Cay,   .340. 
Warner  v.  Dunnavan,    16. 
Warner  v.  R.   Co.,  270,  280,  287,  286, 


340. 
Warner  v. 
Warren  v. 

32.3. 
Washlmrn 
Washburn 
Washburn 


West.  Truis.  ("o.,  272. 
R.   Co.,  — ;,  231,  304,  312, 


V.  Jones,  76. 

V.  Pond,  62. 

V.  R.   Co.,  22.5,  266.  312. 
Washington  v.  R.    Co..  100.  202. 
Washington  &c.  Tel.  Co.  V.  Hobson, 

317.  .340. 
Waterbury  v.  R.    Co..    225.    246,    306, 

312. 
Water  Co.  v.  Brown,   62. 
Water  Co.  v.  Ware,  .301. 
Waterman  v.  Brown,  60. 


TABLE   OP   CASES   CITED. 


The  References  are  to  Sections. 


,  299. 
e,  304. 


350. 


ee    AsBD., 
,  137,  140. 


137,  140. 
140,  162. 


327. 


.J50,  346. 
289. 


r,  319,  320. 

291. 
152. 


),  2S7,  2sr>. 

o.,  272. 

-.,  .304,  312, 


2ti6.  312. 
),  292. 
Ilobson, 

MO,    306, 


Watban,  Tfce,  166. 

Watklns  v.  U.  Co.,  230. 

Wutklua  V.  Uoberts,  38,  42. 

Watkiimou  v.  Luuglitou,  129. 

Watson  V.  Cross,  73. 

Watsou  V.  DuyklneU,  250. 

Watsou  V.  K.  Co.,  247,  312. 

Watts  V.  Canal  Co.,  84. 

Way  V.  Davidson,  08,  70. 

Way  V.  K.   Co.,  341. 

Wayland  v.  MoHeby,  IGO,  213. 

Wayne  v-  Turnpike  Co.,  341. 

Weaver  v.  H.   Co.,   244. 

Webster  v.  R.  Co..  315. 

Weed  V.  Barney,  201,   207. 

Weed  V.  K.    Co.,    103,    272,   291,   292, 

298. 
Weeks  v.  R.  Co.,  272,  289,  302. 
Wehmann  v.  R.    Co.,    157. 
Well  V.  Merchants'  Trans.  Co.,  107. 
Well  V.  R.   Co.,  300. 
Welller  v.  R.  Co.,  142. 
Weinberg  v.  R.  Co.,   101. 
Weir  V.  Ex.  Co.,  158. 
Weir  riow  Co.  v.  I'orter,   5. 
Welslnger  v.  Taylor,   76,   80. 
Weiss  V.  K.    Co.,   341. 
Welch  V.  Mandevllle,  51. 
Welch  V.  I'ull.  I'nI.  Car  Co.,  325. 
Welch  V.  R.  Co.,  1.30,  137. 
Weller  v.  R.  Co.,  254. 
Wells  V.  Archer,  52. 
Wells  V.  K.   Co.,  114,   139,  248,  268. 
Wells  V.  Steam.  Nav.  Co.,  83,  85,  137, 

160.  162. 
Wells  V.  Thomas.   215. 
Wells  V.  Wells.   58. 
Wellsborough  &c.  Co.  v.  Griffin,     296. 
Welsh  V.  R.  Co.,  80,  123,  137,  139. 
Wendio  v.  Jordan,    24. 
Wentworth  v.  McDuffee,  16,  21,  42. 
Wentworth  v.  The  Realm,  182. 
Wentz  V.  R.  Co.,  242. 
Wernwag  v.  R.   Co..   206. 
Werthelnier  v.  R.  Co.,   148,   188,  338. 
West  V.  Blackshaer,  42. 
West  V.  Carolina  Ins.  Co.,  52,  59. 
West  V.  Murphy,  29. 
West  V.  The  Berlin,  120,  i60,  170. 
West  V.  The  Uncle  Sam,  2no. 
West  V.  R.  Co.,  301. 
West  V.  Tel.   Co.,   318,   349,  351. 
Westchester  R.  Co.  v.  Miles,  218,  223, 

26,'5. 
Westcott  V.  Fargo,  139,  142,  149,  162. 
Westcott  V.  Thompson,  .  8. 
Westcott  V.  Tllton,  8. 
Weston  V.  R.  Co.,  2.34,  345. 
Westphal  v.  Ludlow,  58. 
West  Phlla.  Pass.  Co.  v.  Whipple, 

307. 
West.  &c.  R.  Co.  V.  Brown,    296. 
West.  &c.  R.  Co.  V.  Camp,    201. 
West.  &c.  R.  Co.  V.  Ex.  Cotton  Mills, 

132    135 
West!  &c.'r.  Co.  v.  Kelly,   211. 
West.  &c.  R.  Co.  v.  Little,   195. 
West,  &c.  R.  Co.  V.  McElwee,  106. 
West.  &c.  B.  Co.  V.  Stanley,  308. 


&c.  R.  Co.  V.  Turner,   208. 
Trans.  Co.  v.  Barber,   209. 
Trans.  Co.  v.  Hawley,    201. 
Trans.    Co.  v.  Hosklug,    140, 

Trans.  Co.  v.  Marshall,  57. 
Trans.  Co.  v.  Ncwhall,  104.  137, 
140.   142.   140,   I.-.4.  335. 
U.  Tel.  Co.  V.  Adams.  319,  320, 

U.  Tel.  Co.  V.  Allen.  318. 

U.  Tel.  Co.  V.  Harrow,  320. 

U.  Tel.  Co.  V.  Bartlett,  316. 

U.  Tel.  Co.  V.  Berrtlne.  ;W). 

U.  Tel.  Co.  V.  Hcrlnser.  :',M. 

U.  Tel.  Co.  V.  Blanchard.     320, 

•St.  U.  Tel.  Co.  t>.  Broesche,        320, 

V.  Tel.  Co.  V.  Brown.  349.  3,W. 

U.  Tel.  Co.  V.  Buchanan.  317, 
320.  349. 

U.  Tel.  Co.  V.  Call     Pub.  Co., 

U.  Tel.  Co.  V.  Carur,  316,  317, 

319,  321,  342. 

U.  Tel.  Co.  V.  Carter,  3,W. 

U.  Tel.  Co.  V.  Clark.  317.  350. 

U.  Tel.  Co.  r.  Cobbs.   320. 

U.  Tel.  Co.  V.  Coffin.    .■i.W. 

U.  Tel.  Co.  V.  Cohen.  317. 

U.  Tel.  Co.  V.  Cook.   317. 

U.  Tel.  Co.  V.  Cooledge.  320. 

U.  Tel.  Co.  V.  ("ooper.  317.  .350. 

U.  '""I.  Co.  V.  Crnll,    319,     342, 


West. 

West. 

West. 

West. 

149. 

West. 

West. 

139, 

West. 

350. 

West. 

West. 

West. 

West. 

West. 

West. 

349 

West 

3.')(). 

West. 

West. 

319. 

West. 

316. 

West. 

318. 

West. 

West. 

West. 

West. 

West. 

West. 

West. 

West. 

West. 

349. 

West. 

3.10. 

West. 

West. 

West. 

320. 

West. 

West. 

West. 

West. 

349. 

West. 

West. 

320. 

West. 

320. 

West. 

319. 

West. 

West. 

West. 

319. 

West. 

West. 

West. 

350. 

West. 

West. 

West. 

West. 

West. 

West. 

West. 


U.     Tel.    Co.  v-  Cunningham, 

t:.  Tol.  Co.  V.  Dejarles,  SC)0. 
U.  Tel.  Co.  V.  Dubois,  318,  349. 
U.    Tel.    Co.  V.  DunHeld,    319, 

U.  Tel.  Co.  V.  Edsall,  349. 
U.  Tel.  Co.  V.  Erwlu,  350. 
U.  Tel.  Co.  V.  Evans,  S.W. 
U.   Tel.   Co.    V.   Eatman,   317, 

U.  Tel.  Co.  V.  Felgles,  3.'i0. 

V.  Tel.  Co.  V.  Feuton,  318,  319, 

,349. 

V.  Tel.  Co.  V.  Ferguson,       .316, 

U.  Tel.  Co.  V.  Fontaine,        317, 

U.  Tel.  Co.  V.  Fore,  350. 
U.  Tel.  Co.  V.  Foster,    322. 

U.   Tel.   Co.  V.  Graham,     137, 

320,  349. 

U.  Tel.  ("0.  V.  Hall,    349. 

U.  Tel.  Co.  V.  Harris,  320,  349. 

U.  Tel.  Co.  V.  Henderson.     320, 

U.  Tel.  Co.  V.  Hill,   350. 
U.  Tel.  Co.  V.  Hope,    318. 
U.  Tel.  Co.  V.  Howell,  342. 
U.  Tel.  Co.  V-  Hyer,  349. 
T'.  Tel.  Co.  V.  Jobe,    350. 
U.  Tel.  Co.  V.  Jones,  320,  360. 
U.  Tel.  Co.  V.  Kemp.  320. 

645 


f=^ 


iia 


TABLE    OF   CASES   CITED. 


The  References  ar©  to  Sections. 


U 


(  ! 


^Ili 


II 


li! 


IT; 


o 


■.U3 
to 


r" 

3ta 


TO 


West.  U.  Tel 
Wt>»t.  \'.  T(>1 
West.  V.  Tt'l 
West.  U.  Tol 


Co. 

Co. 

Co. 


V.  Kendzora. 
V.  Kinsley,    I?50, 
V.  liliiii,    l!17, 
V.  LoiiKWlll, 


K50. 

L». 

in  8, 


West.  l'.  Tel.  Co.  v.  MeLeod,  ;jr>0. 

West.  U.  Tel.  Co.  V.  MeMllliui,        31i>, 
350. 

Co.  V.  Meek.  :?20,  ^42. 

Co.  V.  Meretlifh.    :)20. 

Co.  r.  Mever.   ;tl7. 

Co.  V-  MiKire,    :i2(). 

Co.  V.  Muiiford,         ."U", 


West.  TJ 
West.  IJ 
West,  t' 
West.  TI.  ... 
West.  U.  Tel 


Tel. 
Tel. 
Tel. 
Tel. 


West'.  V. 


Tel.  Co.  V.  Nations,  ;ir.O. 
.    Tel.    Co.  V.  O'Keel'e,    ;il!t 


West.  U.  Tel.  Co. 
West.  tl.  Tel.  Co. 
West.  V.  Tel.  Co. 
West.  r.  Tel.  Co. 

IT....*       1  T      MV.I      I  *.^ 


V.  Tel.  C(. 
r.  Tel.  Co 


V.  UdSer.s,    :!.")1. 
V.  Uosenlreter,   ■'{.'iO. 
;;.  Itnsseil,    ;i,">((. 
V.  SnuudcrH,   'ATtl. 
V.  Scirclf,    'M'l. 
V.  Shelticld.   .'U!). 
Short,    .•il!l. 


West.  V.  Tel.  Co.   v.  Trissiil,    :!17. 
We.st.  T'.  Tel.  Co.   v.  Tvler.    ;!l'.t.   .TJ(t. 
West.  C.  Tel.  Co.   v.  V;ilenllne.  .'{10. 
West.  TT.  Tel.  Co.  v.  Wind,    .•!1<>,   .-ilT. 
West.  U.  Tel.  Co.  v.  Wmv,     .•il!),     :V20. 

84i». 
West.  T'.  Tel.  Co.  v.  Wilson,    .'{^O. 
West.  I'.  Tel.  Co.   V.  WliiKilte,   :i.-0. 
West.  r.  Tel.  Co.   v.  Wisdom.    ;i,".0. 
West.  II.  Tel.  Co.  v.  Woninek,  .'!,'.0. 
West.  r.  Tel.  Co.   v.  Wood,    .'i.'l. 
West.  II.  Tel.  Co.   v.  Younj,',    .•{17,    320. 
West.  V.  Tel.  Co.   v.  Ziine,    350. 
184 


Co.,   80,   100,    IGO,  218, 


:til, 


Wheeler  v.  H 

Wheeler  \-e.  Co.   v.  Ileil,  8. 
Wheeloek  v.  W  heehvrlKht,  21. 
Wheel wrlKlit   v.  U.   Co.,  341. 
Wheliin   V.  KiMslr.v,   tiO. 
AVhItiiker  v.  Sunnier,  !t\,  rtl,  70. 
Whitlieek   v.  S.  liu.vler,    ll.'i. 
White   V.  Ashlon,   IDO. 
White   V.  Miisconi.  K.,  49,  212. 
Wliite  V.  r.oidlon,   231. 
While  V.  Hmnphrey,   32. 
White  V.  I'lielps,    '>2,   fi.s. 
While  V.  I'liill,  70. 
White  V.  Itiiliwiiy,  <l(i. 
Whim  V.  U.  Co.,  24,  47,  115,  232 

201,  341. 
White   V.  Smith,  20,  27. 
Tel.  Co.,  310. 
The  .Miiry  Ann,  S5. 
Viinn,  213,  21.'>. 
Vim   Kirt,   KiO. 
,.  ..n    »-.  VVIniisiinmel,    HI. 
Willie  .Moiiiiliiiii  1{.  Co.  V.  Hny     Slate 

Iron  Co..  52.  00. 
White  Mnuiilnin  U.  Co.  v.  Kay     Stale 

Iron   <'<!.,  (ill.  00. 
Whiteliead    v.  I{.   Co.,   137,  14S. 

C.  Vandi-.ldit,   3.S. 

V.  llaroldson,  7.S,  328. 

V.  Knsseli,   KiO.   170.  :'AS. 

V.  Thiirllilll,   1.37.    Ii;(>. 
Whitlii'ld  V.  l.oni    I-eDespeiieer,  330. 
Whithx'k  V.  Heard.   17. 
Whit  more  t>.  Itowniaii,    84, 
Wliltinore  v.  ('online,    272. 
Whitney   v.  Ins.    Co.,   213. 

l.ee. 


White  V 
White  V. 
White  V 
White  V 
Wliite  V 


Whileheild 
Whitemore 
Whilesides 
Whitesides 


137. 


Wliltney  v. 
Whitney  v.  I'eay, 
Wliltney   v.  Pull. 
Whitney  V. 
Whitney  V. 


10.  3.!. 

-<7. 
Till.  Car  Co.,  311. 

K.  Co.,  201,  20C>. 

Tlhhetts.  .51. 
Whittaker  v.  Chailesloii  Ciis  (^i.,  0(i, 
Whitteii  V.  Wright,  .58. 
Whittin  v.  I'linl,    5S. 
Whit  well  V.  HrlKhani,   .50. 
Willi  worth  V.  n.  Co.,  10'*,  •.):\K 
wiciiita  Hk.  V.  It.  Co..  n;o. 
WIkk'hh  V.  Hathaway.    .330. 
WijDiit'.s  Kerry  Co.   v.  11.  Co., 
Wii,'),dns  V.  U.  Co.,  1.57. 
Wl),'htmaii  V.  U.   Co..  2(«. 
Wllhy  V.  n.   Co.,   kk;. 
Wlieo.'c  V.  Fairhaven   Hank,  i 
Wlleox   V.  I'lirmlee.  127, 
Wilcox   V.  Tlie    riilhldeliiliia,   _ 
Wildi!  V.  Xlerchaiits'  Trans.   Co.,   1.5(!. 
Wilder  v.  U.  Co.,  80. 
Wilds  j>.  n.  Co.,  .341. 
Wiles  LannderliiK  Co.  V-  Hahlo,  2(i. 
Wllkle  V.  Uiiv,   51. 
Wllkle  i>.  H<dster,   .340. 
Wllkins  V.  lOarle,   70,   si,   272. 
Wilkinson  v.  I'ainie,   230. 
Wilkinson  v.  Verity.    20. 
Wlllarrt  V.  nridge.  22. 
Wllleoeks,  ex  parte,  TAi. 
Wlllets  V.  R.  Co.,  200,  202,  260,  314. 


103. 


2S9. 
Co., 


t 


mam 


TABLE   O/   CASES  CITED. 


The  References  are  to  Sections, 


.   <>2. 

,  UreeuvllU' 

20«. 


Wllllnm,  Tho,  14. 

WUllumB  V.  Uronson,     84,     Ho,     U2, 

im. 

VVlllliiriiH  V.  Ciir  Cii..   2',»S. 
Williiiiii«  V.  Kuril',  Tti. 
WllUiuiis  V.  (iniiit.    lUI,    125. 
WilliauiH  i>.  HtilliiiHl,  40,  207. 
■VVilliiiiiis  V.  .IdiicM,    7. 
Williams  v.  Id  oluik   Co.,   289. 
WllllfiuiK  V.  VfiiKlcrbiU,  124,  250,  201, 

;i4(i. 
Williamson  V.  Ciilitcpiicr.   52. 
Willlanl  i>.  Ucliiliardl.   72,   :i27. 
Willis  V.  U.  Co.,  l;!7,  251,  :«)(). 
Willltt  V.  Kicli.  :i:!2. 
WilliiuT  V.  .Morri'li.  22. 
WlUoii^llihy   V.  Coiiistook, 
WllililiiKto'ii  iV<'.  K.  Co.   V. 

iVc.    K.   Co..    110. 
Wilson  V.  Ailaiiis  ICx.  Co. 
Wilson  V.  Aiulcrlon,    20'.>. 
Wilson  V.  Hrclt.   11.  ;i5. 
Wilson  V.  ClifsaiH'ake,  271. 
Wilson  v.  CulviT,   05. 
Wilson  V.  Kinney,  fS. 
Wil.<on  V.  Ilaniilton.    80. 
Wilson  V.  Ilalpiu,    81. 
Wilson  V.  Mltlo,  51,  52.  G2,  C9. 
Wilson  V.  .Marl In,  1.5,  27. 
Wilson  V.  n.  C'>..  22.  47.  lO;?,  1,37,  130, 
102,  215,  240,  270.  270,  280,  201,  202. 

308    311,  328,  345,  .'148. 
Wilson  V.  Whilo,    ;;oi. 
Wilton  V.  U.   Co.,  225.  266. 
Winliourn's   Caso.   205. 
WhiK  V.  1{.    Co.,    124. 
WiiiklU'ld  V.  I'ai'kiiijflon,   115,  WS. 
Winklcy   n.  I'ovo,  20.  22,  20. 
AVIiiii  V.  U.   Co.,  :!:i7. 
SViiinc^'ar  v.  It.  Co.,  200. 
Wliona  &(•.  U.  Co.  v.  lUake,   88. 
Wliislilp  V.  .Noalo,     15. 
Winslow  V.  n.   Co.,   202,  200. 
Winston  V.  Taylor,  45. 
Winlcrniute  v.  Clark,  72,  327. 
Winters  v.  K.  Co.,  307,  314. 
WlntrinKliani   v.  Hayes.    .'!;!2. 
Wisconsin  Tel.  Co.  v.  Oskosh,  323. 
Wiser  V.  Chesley,  ,'!3.  72,  332,  333. 
Wisncr  v.  I'.arlier.   344. 
Witlieck  V.  Holland,    101,   201. 
Witowskl  V-  lirennan.   5,   44. 
Wittlii«  1).  K.   Co.,  33S. 
Wttzler  V.  <'ollins,    170. 
Woleott  V.  Keith,   70. 
Wolf  V.  Kx.   Co.,  123,  334. 
Wolf  V.  It.   Co..   102.  201. 
Wolf  V.  Ttl.    Co.,   .31 0.   .320. 
Wolf  V.  The  Vanderland,   162. 
Wolf(>  V.  Mvors,    100. 
Wolfsklhl  r.  Tol.  Co.,  318. 
Woni.Tok  IK  Tel.  Co.,  310,  320. 
Wood  V.  Colli),   300. 
AVood  V.  rroeker,  201,  202. 
Wood  V.  MeChire,  .38. 
Vi'ood  V.  Aforsan,  05. 
Wood  V.  Orsor,  8. 
Wood  V.  R.  Co..  104.  115,  307. 
Woodeu  V.  Austin,   162. 


05.  224, 


I    Wooiliiiiiii  V.  Hubbard.  21 
Woodiiiaii  V.  .N'ollia^'hani.  15. 
WoodrulV  V.  Ilalsey,  tw. 
WoodnilT  (•.  I'ainler,   332. 
WoodrulT  V.  Sherranl,   130,   140,   1.50 
Woodraff  Slcfpiii^'CarCo.   v.  Dielil 

.324,  .325,  .■;2N. 
Woods  V.  Dim  in,  270.  271    27"    'N-) 
Woods  V.  If.  Co.,  ;illl. 
Woodward  /•.  I'.lrdi.  fsl. 
Woodw.inl  I,.  Cutter,  0 
Wooh'ii  .Maiif-.  Co.  D.  liiintlev,    20. 
\Soolery   v.  K.    C,,.,   200.    30.S. " 
Wooley  V.  l.oMisvllle    liank.    ,53. 
Woolf  c.  r.enicro,  ;i;!. 
AVoolsey   v.  U.    Co..   225. 
W(]osier  II.  3  arr,   1(10,   2i;i. 
Vi'ord   ;•.  .Moruiui.  5S. 
Worth  V.  lliliuoniis,    120. 
Wort  hen  v.  It.  Cn..  ;',(>7. 
Wortliin;;tiin  v.  3'ii\vaev     .52 
Wrlfjlit  V.  Caldnrii,    lit; 
Wrijrlit  V.  (JalV,  137. 
WrlRht  V.  Ilolbrook,   ,301 
NVrlKht  V.  n.    Co.,    12,   204. 

20.5.  201. 
^Vriglit  V.  Ross.  51,  .52. 
\/rlKht  V.  Solonioii,    54. 
WrlKht  V.  3'erry,  20. 
AVri;;ht  v.  \\ileox,  2:)7. 
Wyatt  V.  R.  Co.,  30S,  312 
Wyekoff  V.  Aiithoiiv,   .53. 
Wyekofr  V.  Ferry  Co..  84,  112. 
Wyekoll'  V.  Soiil'h.    Hotel    Co..    82 
Wyld  V.  rickford.  l;!0,  103. 
Wylde  V.  R.   Co.,  3n7. 
Wyuiaii  V.  II.  Co.,  1U3,  241,  2.57. 

Y. 

Yale  V.  Oliver,  40. 

Vate  V.  Wlllan,  142. 

Yeoiuau  v.  Contra    Costa     Co.,    225, 

340. 
Yerkes  v.  Keokuk  &e.  Co.,  232,  340. 
Yerkes  v.  Sabln,    112. 
Vonire  v.  I'ae.    Mail   Steam.   Co.,  340. 
York  Co.  V.  II.  Co.,  137,  157,  lOU.  102. 
York  iVic.  R.  Co.   v.  Winaiis.   200. 
Yorke  v.  (ireenaufxh,  70.  215. 
Yorton  v.  R.  f^o.,  244.  347. 
YouiiK'  V.  Rruee.   13.  25. 
YouiiK  V.  Kimball.  212. 
YoiniK  V.  Kinney.  340. 
Yonn.i;  l>.  It.    Co.,   201,  292. 
Yoniif,'  V.  Smith.  201. 
Youui,'  V.  Tel.  Co.,  318,  319,  320,  350. 

z. 

ZaRoImeyer  v.  R.  Co..  2u8,  261. 

ZelKler  v.  R.   Co.,  230. 

Zeinp  V.  R.    Co.,   304..   306,   340. 

Zeiiobia,  The,  340. 

Zerejja   v.  Topiie.    337. 

ZInn  V.  Steam.  Co.,  201. 

Zone,   The,   170. 

Zung  V.  Houlaud,   174. 

Zuuz  V.  R.  Co.,  240. 

647 


iSf 


n 


llii^ 


'i ' 


<ii 


0 


CD 

'JO 

c: 
■Mi. 

< 

CO 


rlf 


•♦till 
3s: 


I  III : 


llll 


INDEX. 


The  References  are  to  PaMg 
ACTION, 

''lloll;.^''  ^^""^  *^'''°''  ^''■''"  ^^^^^^^•••"g  ^ith  his  posses- 

The  pledgee's  right  of  action,  114. 

The  pledgor's  right  of  action,  115. 

The  carrier's  right  of  action  for  his  freight  charges,  m 

The  carrier's  right  of  action  for  injury  to  goods  in  his  hands.  290 

Action  against  carrier  for  loss  or  injury  to  goods,  288 

7r.J  ir'""'  ''^'''"'*  *'''«''"P'^  ^^"^P^'^y  ^y  «^"1ee  Of  tele- 
ACT  OF  GOD, 

What  is,  and  what  Is  not.  182-186. 

ADVERTISEMENTS.     See  Limiting  Liability. 
AGISTER, 

Ldability  of,  86,  87. 

AGREEMENT.    See  Consideration:  Limitation  of  Liability 

Bailee  may  by,  extend  his  liability,  30. 

Termination  of  bailment  by,  60. 

ASSAULT, 

Liability  of  carrier  for  assault  by  third  person  made  on  passen- 
ger, 466. 

BAGGAGE.    See  also  Contributory  Negligence:  Sleeping  Cars. 
Liability  of  Innkeeper  for  baggage  of  guest,  133. 
Right  of  passenger  to  baggage,  388. 
Carrier  of  baggage  an  Insurer,  387. 
What  is  baggage,  391. 
Usage  and  custom  relevant,  399. 
Carrier  may  refuse  to  carry,  when,  400. 
Effect  of  failure  to  state  kind.  400. 
Effect  of  failure  to  state  value,  401. 
May  enquire  as  to  contents  of  trunk,  401. 
Knowledge  of  carrier  that  aa-ticlcs  are  not  baggage,  402. 
Owner  of  baggage  must  be  passenger,  404. 
Need  not  accompany  baggage,  404. 

649 


'I 


jmr 


INDEX. 


1 


c: 

< 


is; 


y.! 


The  RefereuccB  »re  to  Pages; 

BAGGAGE— Continued. 

When  liability  of  carrier  begins,  403.  . 

Before  purchase  of  ticket,  ■:''0(J. 

BaKtjaKe  left  without  notice,  407. 

Custom  a.s  to  leavint;  baupijje  without  notice,  407. 

The  baK^'a^eman  and  liis  powens,  4()S. 

The  i)ajrffij;e  clieck,  40!). 

When  liability  of  caiTler  ends,  410. 

Liability  of  carrier  as  warehousi-nian,  412. 

A.S  to  couucctinK  carriers,  41.'!. 

Where  baggage  In  custody  of  passenger,  414. 

BAGGAGE  CHECKS.    See  Limiting  Liaiumty. 

BAILMENT, 

Defined,  9. 

Ue-dellvery  of  thing  not  essential  to,  10. 

E.xpress  agreement  not  esisentlal,  10. 

Involuntary  deposit-s,  11. 

Finder  is  a  bailee,  11. 

No  bailment  witliout  consent  of  baiUn',  12. 

The  different  clas.ses  of  bailments,  \:\. 

The  old  divisions.  18. 

The  new  divisions,  IS. 
Subject-matter  of,  a  cliattel,  17. 
License  to  use  realty  not  a,  17. 
Leia.se  of  liouse  or  lodgings  not  a.  17. 

Aliter  as  to  storage  wareliouse,  IS. 
Distinction  between  sale  and,  lit,  20. 

Chattel  to  be  returned  in  altered  form,  19. 

Grain  delivered  to  elevator,  19. 
Deposit  of  money  in  bank  not  a,  20. 

Nor  loan  of  money,  20,  21. 
Parties  to  contract  of,  23. 

Liability  of  bailee  for  acts  of  agents  or  .servants,  23. 
Consideration  necessary  to  support  bailment  contract,  when,  24. 
Care  and  diligence  required  of  bailecw,  2.').  30. 
Modification  of  liability  by  agreement,  30,  33. 
Modification  of  liability  by  acts  or  conduct  of  bailor,  33. 
Bailee's  .special  property  in  chattel  bailed,  34. 
Bailee's  right  of  action  against  third  parties  interfering  with 

chattel,  35. 
Bailee's  property  limited  to  trust,  37. 

650 


INDEX. 


The  Reference!  are  to  Pagei. 

HAUMENT— Continued. 

Cunnot  Hcll  baihMl  chattol,  37. 
Trust  <liitlo,s  of  bailee,  P.H, 

May  uot  dispute  bailor's  til ;     P.8. 

Exceptions,  38. 
Must  follow  Ills  Instructions.  S!>. 
Raileo  may  use  chattol  vhen,  4'],  44. 
Duty  of  ballcKx  to  re-cU      w  the  chattol    jg 

No  excuse  that  Me  delivere.i  to  wronR  person  by  mistake  47 
Excuses  for  non-delivery,  iU.  '"«"iKe.  ii. 

Duties  of  bailor,  49. 
Must  allow  bailee  free  use  of  thing,  .^O. 
Must  not  loan  or  let  a  defective  thinj;,  50 
Bailor  not  liable  for  bailee  injuring  third  iki^'ous.  51 
Duty  of  bailor  as  to  compensation  and  re-imburseraent    .1 
The  bailee's  lien,  55,  fiO. 
Joint  and  several  bailees,  59. 
Terniiuation  of  bailment,  CO. 
By  agreement  of  parties,  (JO. 
By  acts  of  partiw,  (iO. 
By  expiration  of  time,  01. 
By  violation  of  duty,  (11. 
By  incapacity  of  parties,  G2. 
By  death,  (52. 
By  bankruptcy,  02. 
By  destruction  of  chattel,  G2. 
By  bailee  'becoming  purchaser,  G2. 
By  limitation,  02. 
Gratuitous  bailments  for  bailor's  sole  bonefit,  04,  74. 

Bights  and  liabilities  in  siicli  bailments,  01,  74. 
Gratuitous  bailments  for  bailee's  sole  beuelit,  75. 
The  gratuitous  loan,  75,  78. 

BANKRUPTCY, 

Termination  of  bailment  by,  02. 
BANKS, 

Deposit  of  money  in,  not  a  bailment,  2(). 
Except  it  be  a  special  deposit,  20,  21. 

BILLS  OF  LADING.    See  Limiting  Liability. 

BOARDING  HOUSES. 

Distinguished  from  inns,  126. 

BURDEN  OF  PROOF.    See  Evidence. 

651 


'I 


INDEX. 


m  ' 


!|il 


I: 


CD 

c:' 

CO 


3f» 

IT- 

•Km 


The  Beferences  are  to  Pages. 

CABE  AND  DILIGENCE.     See  also  Negligence. 
The  measure  of,  required  of  bailees,  13,  14,  24. 

CARRIEBS.    See  Common  Carribbs  of  Goods:  Common  Caruikrb';^ 
Passengers.  *" 

Liability  of  private  carrier,  90,  91. 

CHARGES.    See  Compensation  and  Reimbursement. 

CHATTEL, 

Subject-matter  of  bailment  a.  17. 

CHATTEL  MORTGAGE. 

Distinction  between  pledge  ^nd,  93,  94. 

COMMODATUM, 
What  is,  13. 

COMMON  CARRIERS  OF  GOODS. 
Definition  of.  141. 
Who  are,  142,  145. 
Who  are  not,  140. 
Carriers  of  live  animals  as,  146. 
Are  subject  to  public  regulation  and  control,  149,  150. 

(a)  Duty  to  Receive . 

Must  carry  for  all  persons,  151. 

Must  carry  for  all  under  same  conditions,  152. 

Must  carry  for  reasonable  comipensation,  152. 

Right  to  discriminate  in  charges,  153. 

Exceptions  to  rule  'that  carrier  must  carry  for  all  who 
apply,  156. 

Where  payment  of  charges  refused,  150. 

Where  service  outside  his  holding  out,  150. 

Where  goods  ill-conditioned  or  suspiciou.s,  158. 

Where  he  has  insufficient  room,  l.!t9. 

Carriage  must  be  for  hire.  160. 

Carriage  beyond  carrier's  route.  160. 

Has  power,  but  not  bound  to  carry  beyond  his  route,  161,  ItS. 

Effect  of  agreement  not  to  carry  beyond  route,  163. 

Proof  of  agreement  to  carry  beyond  route,  165. 

Actual  delivery  to  connecting  carrier  required,  107. 

Except  as  between  the  carriers  themselves,  168. 

Receipt  of  goods  marked  to  placo  beyond  route,  effect 
of,  169,  171. 

Right  Off  connecting  caarier  to  exemptions  in  first  con- 
tract, 172. 

662 


mmmmt 


INDKX. 


for  all  who 


The  References  are  to  Paget. 
COMMON  CARRIERS  OF  GOODS— Continued. 

Power  of  first  caiTler  to  contract  with  connecting  carrier  173 
Other  rights  and  liabilities  of  connecting  carriers   iT 
Presumption  as  to  time  of  damage,  175. 

(b)  Besponsibility  During  Transit. 

Carrier's  responsibility  begins  on  delivery,  17G. 

Actual  or  constructive  acceptance  necessary,  178. 

At  what  plac3  must  delivery  be  made,  178. 

To  whom  must  delivery  be  made,  178! 

Delivery  according  to  usage  and  custom,  179. 

Common  carrier  a  bailee  for  hire,  ISO. 

Common  carrier  likewise  an  insurer,  ISO. 

Exceptions  to  his  liability  as  insurer,  181. 

What  is  the  "Act  of  God,"  182,  ISc' 

Cases  not  within  the  "Act  of  God,"  ISO. 

The  question  of  negligence  immaterial,  187. 

"Act  of  God"  must  be  exclusive  cause,  187. 

Negligence  and  "Act  of  God"  concurring,  188. 

Loss  by  "Act  of  God  "  after  delay,  189. 

LOS.S  by  "Act  of  God"  after  deviation,  190, 

Duty  of  carrier   to   preserve  goods  damaged  by  "Act  of 

God,"  191. 
The  public  enemy,  192. 

Losses  caused  by  inherent  defects  in  goods  cain-ied,  193. 
Losses  caused  by  weizure  under  process,  194. 
Losses  caused  by  act  or  omission  of  owner,  I9ti. 
Losses  caused  through  fraud  of  owner,  196. 
Losses  caused  by  neglect  of  owner,  198. 
Owner  undertaking  part  of  carrier's  duties,  198. 

(c)  Modification  of  Liability  by  Agreement.    See  Limiting  LiAniUTY. 

Effect  of  special  contracts  made  with  shipijcr,  242. 

(d)  Duty  to  Bedeltver, 

Carrier's    responsibility    continues   until    he    makes    deliv- 
ery, 275. 
Delivery  must  be  at  proper  place,  270. 
Delivery  must  be  in  reasonable  manner,  278. 
Delivery  must  "he  at  proper  time,  280. 
Delivery  must  'be  within  reasonable  time,  281. 
Where  personal  delivery  reiiuired,  277. 
Where  notice  of  arrival  must  be  given,  279. 
Instructions  of  shipper  must  be  followed,  282. 
Lia..ility  for  delivery  to  wrong  person,  284. 

653 


!iit 
m 
liii' 


if 


IV 


II 


Ml! 


illi^ 


H4M.M 


PI' 


i 


INDEX. 

The  RefereuceH  are  to  Pages. 

COMMON  CARRIERS  OF  GOODS— Continued. 

Duty  of  carrier  to  notil'y  coiisij^nor.  284. 

Right  of  oousignce  to  cxauilno  goods,  28,"). 

Claims  of  owiUTshii)  of  third  porsous,  28."). 

Who  may  sue  for  loss  or  injury  to  goods  while  iu  carrier'.s 

hands,  288. 
Carrier  may  sut"  for  interference  with  them  by  third  per- 
sons, 290. 
Right  of  action  for  freight  charges,  290. 
Power  of  caiTier  to  sell  goods  for  charges,  291. 
The  carrier's  lien,  292. 

COMMON  CARRIERS  OF  PASSENGERS.      See  also  BAr.oAfiK:    CoN- 

TBIUUTORY   NEGLIGENCK:       SLEKI'ING    CaU   Co.Ml'ANIES. 

(a)  Belation  of  Carrier  and  Passenger. 

Who  are.  298. 

Must  carry  for  all  who  apply,  299. 

Where  payment  of  fare  refused,  .'WO. 

Where  service  demanded  outside  his  holding  out,  300. 

Where  he  has  insutllcieut  room,  .300. 

Where  persoLi  lia.s  couliicting  interests,  301. 

Where  person  dangerous  or  offensive,  301. 

Waiver  hy  receiving  passenger,  302. 

Who  are  passengers,  303. 

Servants  of  carrier  as  passengers,  ,30(i. 

At  what  time  relation  begins.  .'iOT. 

During  what  time  relation  continues,  309. 

At  what  time  n.'lation  ends,  .310. 

Per.son.s  not  passtmgers  to  \\  hom  carrier  owes  duty,  310. 

(b)  Duty  as  to  Means  of  Transportation. 
Carrier  of  passengers  is  not  an  insurei-,  .313. 
Liable  for  slight  negligence,  ,".l:'>. 

Duty  as  to  his  vehicles  ami  appliances  for  tran.sporta- 
tion,  314. 

Duty  as  to  lii.s  stations  and  landing  places,  .''.28. 

Duty  as  to  his  roadway,  327. 

Duty  to  adopt  new  inventions  for  safety,  .330. 

Responsibility  for  negligence  of  contractor  or  manufac- 
turer, 3.30. 

(c)  Duties  and  Liabilities  during  Transit. 

Carrier  nmst  furnish  i)assengi'r  with  seat,  358. 

And  means  of  refre.slimeut,  300. 

Must  carry  passenger  to  destination,  300. 

654 


INDEX. 


lu  earner's 
y  lliird  per- 


rage:    Con- 

s. 


,300. 


ty,  310. 


transpOTta- 


or  manufac- 


The  References  are  to  Pages. 
COMMON  CARRIERS  OF  FASSE^GERS-Continned. 

Must  enable  him  to  land  safely,  361. 

Powers  of  carrier  to  establish  re-  'lations  SW 

Passenger  may  bo  ejected  for  violation  o'f  regulations,  305 

Mode  and  place  of  ejection,  307. 

Passenger's  right-  to  resist  ejectment,  307. 

No  right  to  imprison,  309. 

Non-payment  of  fare,  right  to  eject  for,  ■.]T2. 

Requiring  previous  purchase  of  tickets,  373. 

Showing  and  surrendering  ticket,  374. 

Other  regulations  as  to  tickets,  370. 

Concerning  use  of  carrier's  premises,  377. 

Classification  of  passengers,  370. 

Right  to  discriminate  on  account  of  color  or  sox,  377. 

Passengers  on  freight  trains,  37S. 

Dangerous  and  disorderly  passengers,  381. 

Notice  of  regulations,  when  necessary.  3S2. 

Persons  under  physical  or  mental  disability,  383. 
(c)  Contract  of  Carriage. 

Time  tables  as  contracts,  332. 

Liability    of    caiTier    for   not    running   according    to   time 
tabl?,  337. 

Tickets  as  contracts,  338. 

Conditions  printed  on  tickets,  validity  of,  338. 

Assignability  of  ticket,  345. 

Conclusiveness  of  ticket  as  between  passenger  and  carrier's 

agents  and  servants,  34."). 
Limiting  liability  for  negligence— See  Limiting  LiAniLirv. 
Duty  of  carriers  toward  passengers  riding  free,  348. 
Who  are  free  passengers,  340. 
Special  contracts  with  passengers,  357. 
(d)  Acts  of  Third  Persons. 

Passenger  carrier  not  '  mm\  to  carry  beyond  ron;-,  420. 
Liabil!*-y  whej-e  he  makes  through  contract,  421. 
Evidence  of  through  contract,  422. 

Where,  means  of  transportation  belong  to  third  parties,  423. 
Where    third    parties    use   carrier's   means   of   transporta- 
tion. 427. 
Where  line  In  hands  of  trustees.  428. 
Where  line  in  hands  of  lessees,  purchasers  or  others,  430. 
Liability  of  master  for  acts  of  servants,  435. 
Application  of  foregoing  rules  as  between  carrier  and  pass- 
enger, 440. 

655 


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INDEX. 

The  References  are  to  Pafes. 

COMMON  CARRIERS  OF  PASSENGERS— Continued. 

Rule  of  absolute  liability  and  reasons  therefor,  451. 
Relation  of  master  anil  servant  must  exist,  453. 
Liability  for  acts  of  independent  contractors,  455. 
Liability  for  acts  of  fellow-passengers  and  strangers,  466. 

COMPENSATION  AND  REIMBURSEMENT.     See  also  Action. 
Compensation  of  bailee  for  hire,  51. 
Effect  of  destruction  of  chattel  upon,  52,  54. 
In  hiring  of  chattels,  52. 

Common    carrier   obliged    to   carry    for   reasonable   compensa- 
tion, 152. 

CONNECTING  CARRIERS. 

Liability  of  carrier  for  default  by,  160,  175. 

CONSENT, 

Essential  to  bailment  contract,  12. 

CONSIDERATION, 

When  essential  to  bailment  contract,  24,  82. 

Must  be  absent  In  gratuitous  bailments,  65,  60. 

In  case  of  gratuitous  loan,  75,  70. 

Required  to  support  contract  of  carrier  limiting  his  liability,  234. 

CONSTRUCTION.    See  Wokds,  Phrases  and  Definitions. 
Of  contracts  of  carriage,  242. 

CONTRIBUTORY  NEGLIGENCE, 
Of  bailor  toward  chattel,  33. 
In  selection  of  bailee,  33. 
Of  guest  at  inn,  133. 

Of  owner  of  goods  in  hands  of  carrier,  134. 
Of  passenger  in  alighting  from  train,  303. 
Carrier  not  liable  where  passenger  injures  himself,  474. 
Where  both  carrier  and  pa.ssenger  are  negligent,  475. 
Negligence  a  question  of  fact — province  of  judge  and  jury,  477. 
Contributorj'  uegligence — riding  in  dangerous  place,  477. 

Riding  in  dangerous  manner,  478. 

Boarding  or  leaving  vehicle,  480. 

Other  casc\s  of  contributory  negligence,  480. 

Caused  by  carrier's  fault,  483. 

Loss  of  baggage,  480. 

Passenger  in  sleeping  car,  487. 

Acts  of  passenger  resulting  from  directions  of  carrier's  ser- 
vants, 487. 

656 


INDEX. 


451. 

'5. 

Sers,  466. 

3TION. 


compensa- 


ability,  2S4. 


a. 

1  jury,  477. 
477. 


irrier's  ser- 


The  Beterences  are  to  Fageg. 

CONTRIBUTORY  NEGLIGENCE— Continued. 
Of  third  persons,  488. 
Of  persons  in  charge  of  children,  489. 
Of  carrier  of  passenger,  491. 
Of  sender  of  telegrapUc  dispatcii,  514. 

COSTS.    See  Compensation  and  Reimbursement. 

DAMAGES, 

Measure  of  damages  in  actions  against  ordinary  bailees,  572. 

Common  carriers  of  goods,  574. 

Carriers  of  passengers  for  breach  of  contract,  576. 

In  actions  of  tort.  578. 

Exemplary  and  punitive  damages,  582. 

Measure   of   damages  in   actions   against  telegraph  com- 
panies, 584. 

Damage  for  mental  suffering  recoverable  in  Texas  and  other 

States,  595. 
The  Texas  doctrine  denied  in  some  States,  602. 
Arguments  for  and  against  the  Texas  doctrine,  602. 

DEATH, 

Termination  of  bailment  by,  62. 

DEFINITIONS.    See  Wouds,  Phrases  and  Definitions. 

DELAY, 

Of  carrier  In  delivering  goods,  281. 
Effect  of  loss  by  act  of  God  after,  189. 

DELIVERY, 

Of  possession  of  pledged  thing  essential,  94. 

Aliter  in  case  of  chattel  mortgage,  94. 

Delivery  of  incorporeal  property  in  pledge,  how  made,  K. 

Constructive  delivery,  how  maide.  96. 

DEPOSIT, 

Involuntary,  what  is,  11. 
Necessary,  what  is.  11. 

DBPOSITUM, 

What  is,  13,  14. 

DEVIATION, 

Effect  of  loss  'by  act  ©f  God,  after,  190. 

DURESS.    See  Limiting  Liability. 

ELEVATORS.    See  Passenger  Elevators;  Bailmbnts. 

43  657 


' 


;Bii 


n  ; 


\1  V 


If 


,11 


1  . 


Ill 


CO 

Cm 

< 

:i 


INDEX. 

The  References  are  to  Pageo. 

EVIDENCE, 

Burden  of  proof  in  ordinary  bailments,  543. 

lu  actions  against  Inn-keepers,  548. 

lu  actions  against  common  carriers  of  goods,  548. 

Proof  of  the  contract,  549. 

Quantum  of  proof  required,  549. 

rroof  that  loss  within  excepted  causes,  TmO. 

Burden  of  proof  as  to  negligence,  551. 

Burden  of  proof  under  special  circumstances,  553. 

Burden  of  proof  iu  actions  against  carriers  of  passengers,  554. 

Burden  of  proof  of  contributory  negligence,  5(j;{. 

Burden  of  proof  in  actions  against  telegraph  companies,  .5(>9. 

Burden  of  proof  iu  actions  against  sleeping  car  companies,  570. 
EXPRESS  KECEIPTS.     See  Limiting  Liability. 
FACTOR, 

Is  a  bailee,  5  n. 

Has  title  against  everyone  but  owner,  35. 
FINDER, 

As  a  bailee,  11. 
FRAUD.    See  LiMiTiNf,  Liability. 

In  obtaining  loan,  effect  of,  \1. 

Pledge  obtained  by,  gives  no  rights,  12. 

Of  owner  of  goods  in  hands  of  carrier,  effect  of,  19G. 
FREIGHT  TRAINS. 

Rights  of  persons  \i\)on,  378. 
GRATUITOUS  BAIL.MENT.S. 

Are  the  depositum  and  niandattim  of  the  civil  law.  64. 

Consideration  must  be  absolutely  absent,  G5. 

Any  Indirect  beneflt  sufficient,  UG. 

Liability  of  gratuitous'  bailees,  G8,  72. 

Rule  where  bailee  has  requested  Oia   ■  .    'riH.;',.  72. 

Skilled  gratultolis  bailees,  liability  or    . 

The  gratuitous  loan  is  the  commod.'..cu  '',  =     cic  civil  law,  75. 

To   mi)ke   loan   gratuitous,   benefit  mjf      .e   all  on   borrower's 
side,  75,  70. 

Liability  of  borrower,  76,  78. 
HIRE  OF  CHATTELS. 

Hirer   must   use   them    in    way    contemplated    by   contract   of 
hire,  44.  4G. 

Otherwise  he  becomes  an  insurer,  44. 

Distinguished  from  loan  by  consideration,  82. 

Rights  of  hirer.  82. 

Responsibility  of  Wrer.  S3. 

fKKO 


\ 

;i 

i 

i. 

'i  ■ 
'1' 

! 

I 

1 

L 

i 

INDEX. 

The  ReterenceH  are  to  Pages. 
HIRE  OF  SERVICES. 

Liability  of  bailee  for  neglect,  83,  85. 

IMPRISONMENT. 

Carrier  has  no  right  to  impiisou  passenger  for  non-paymont  of 
fare,  3G7. 

INCREASE, 

Right  to  increase  of  pledged  cimttel,  100. 
INFANTS, 

Duties  of  carrier  towards.  383. 

INNKEEPERS, 

Who  are  innkeepers,  12.j. 

Distinguished   from   hoarding   house   and  lodging  house  keen- 

er.s.  126. 
Duty  H)  receive  the  public,  127. 
Duty  only  toward  guests,  128. 
Duty  as  to  guest's  person,  129. 
An  insurer  of  guest's  propertj-,  13Q 
At  what  time  liability  begins,  132. 
At  what  time  liability  ends,  132. 
For  what  property  responsible,  133. 
Contributory  negligence  of  guest,  131. 
Limitation  of  innkeeper's  liability,  135. 
The  innkeeper's  lien,  137. 
Sleeping  car  companies  as.  518,  529. 

INSANITY, 

Termination  of  bailment  by,  62. 

JOINT  AND  SEVERAL  LIABILITIES. 
Joint  and  several  bailees,  59. 

LEASE, 

Of  house  or  lodgings  not  a  bailment.  17. 

Liability  of  carrier  when  road  in  haud>i  of  lessee. 
LICENSE, 

To  use  realty  not  a  bailment,  17. 

LIEN, 

Of  bailee  of  chattel  for  services,  55. 

Requisites  to  lean  of  ordinary  bailee,  56,  59. 

Is  defeated  how,  57. 

Of  innkeepe.\s,  137. 

Of  common  carriers.  292. 

659 


7 


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,  ( 

■"^ 

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■ 

INDEX. 

The  Referenees  arc  to  Pages. 

LIMITATION, 

When  statute  runs  agadnst  bailor's  right,  62. 

Extinguishment  of  pledge  by,  118. 

Of  time  for  making  claim  against  carrier,  236. 
LIMITING  LIABILITY, 

Bailee  may  limit  his  liability,  32. 

May  stipuiivte  for  exemption  from  his  neglect,  32. 

Of  Innkeeper  by  contract  and  statute,  135. 

Power  of  common  carrier  to  limit  his  liability. — In  England,  203. 

In  the  United  States,  204. 

Reasons  for  the  American  rule.  208. 

Anomalous    doctrines    in    New    York,    Illinois    and    Peunsyl- 
vania,  211. 

Notices  limiting  the  carrier's  liability,  216. 

Distinctions  between  notices  limiting  liability  and  notices  of  rea- 
sonable regulations,  210. 

Notices  as  to  value  and  character  of  goods,  217. 

Methods  of  giving  notice. — Advertisements  and  placards,  221. 

Notices  in  receipts  or  other  vouchers,  222. 

Notice  assented  to  constitutes  a  contract,  223. 

Assent  not  inferred  from  mere  knowledge,  224. 

Accepting  papers  containing  limitations  or  conditions,  225. 

Notices  in  bills  of  lading,  225. 

Notices  in  express  receipts,  226. 

Notices  in  baggage  checks,  227. 

Requisites  to  validity  of  notices  limiting  liability,  228. 

There  must  be  no  mistake,  228. 

Nor  duress,  229. 

Nor  fraud,  230. 

Nor  waiver.  232. 

Nor  antecedent  parol  contract,  233. 

Must  have  a  consideration,  234. 

Conditions  as  to  time  and  manner  of  making  claim,  230. 

Other  conditions  sustained  as  reasonable,  239. 

Bills  of  lading  as  receipts  and  contracts,  240. 

Effect  of  the  special  contract,  242. 

Contracts  construed  strictly  against  carrier,  243. 

Construction  of  conditions  and  exceptions  in  carrier's  contracts. 
See  Words,  Phrases  and  Definitions. 

Limiting  liability  for  negligence  as  to  paying  passengers,  348. 

Duty  of  carrier  towards  free  or  paying  passenger  the  same,  348. 

Who  are  free  passengers,  349. 

Limiting  liability  for  negligence — ob  to  free  passengers,  351. 

660 


INDEX. 

The  References  are  to  Pigei. 
LIMITING  J^IABILITY—Contimed. 

Arguments  in  support  of  the  differont  views  357 

Special  contracts  with  passengers   357 

Limitation  of  liability  in  blanks  of  telegraph  company.  503.  505 
LIVERYMAN, 

Liable  for  negligently  furnishing  unsuitable  horse   50 

But  does  not  warrant  horse  free  from  defects  50  ' 

Liability  of,  In  general,  87. 

LOAN.    See  also  Gratuitous  Bailments. 
Of  money  not  a  bailment,  21. 
Valued  loan,  what  is.  22. 
Lender  must  not  lend  defective  chattel,  60. 

LOCATIO.    See  also  Hire  of  Services:  Hire  op  CuAiiixs 
What  is,  13. 

LODGING  HOUSES, 

Distinguished  from  inns,  120. 
LOSS, 

Extinguishment  of  pledge  by,  117. 
MAIL  CARRIERS, 

Liability  of,  for  loss  of  letters,  535,  540. 

MANDATUM, 

What  is,  13,  64. 

MANUFACTURER, 

Materials  during  process  of  manufacture  belong  to,  21. 
Do  not  vest  in  party  for  whom  made  until  completed,  21. 
MARRIAGE, 

Termination  of  bailment  by,  G2. 

MASTER  AND  SERVANT. 

Liability  of  bailee  for  acts  of  servants  or  agents,  23. 
Bailor  not  liable  for  acts  of  bailee,  51. 
Servants  of  carrier  as  passengers,  303. 

Responsibility  of  carrier  of  passengers  for  neglect  of  manufac- 
turer or  contractor.  330,  455. 
Liability   of   carrier   of  pas.sengers  for   acts  of  servants   and 
agents,  435,  453. 

MEASURE  OF  DAMAGES.    See  Damages. 
MERGER, 

Extinguishment  of  pledge  by,  118. 
MISTAKE.    See  Limiting  Liability:  Redelivery. 

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INDEX. 

Tke  References  are  to  Pageo. 

MUTUAL  BENEFIT   BAILMENTS.      See   also  Hike  ok  Chattels: 
IliUK  OF  Skuvices:    Cakhikks. 
The  classes  of,  7<),  SO. 
Tlio  staudarda  of  care  and  responsibility,  80,  82. 

MUTUUM. 

What  is  a,  21. 

NEGLIGENCE.    See  Common  Cariuers  of  Goods:  Burden  of  riiooK: 
Evidence. 
Di'liuod,  2G. 
Is  absence  of  care  accordiuj;  to  the  circumstances,  viz.,  2(J. 

Nature  and  value  of  article,  2G. 

Customs  of  place  or  trade,  2{». 

Condition  of  country  and  climate,  2G. 

Condition  of  time,  20. 
Nesligence  immaterial  where  bailment  is  tortious,  .'U5. 
Or  where  bailee  has  converted  the  property,  .37,  40. 
Or  where  bailee  violates  his  instructions  or  breaks  bailment  con- 
tract, 39,  41,  42,  44. 
Liability  of  gratuitous  bailees  for,  08,  72. 
Liability  of  borrower  for,  7.">.  78. 
Liability  of  mutual  benefit  bailees.  80,  S2. 
Liability  of  hirer,  83. 

Liability  of  one  whose  s<'rvices  are  hiivd,  S3,  8."). 
Liability  of  pledgee  in  keeping  pledged  thing,  103. 
Liability  of  iuu-keepor  for.  129. 
Liability  of  carrier  of  passengers  for,  ISl.".. 
Liability  of  owner  of  pas.senger  elevator  for,  533,  53u 
Liability  of  telegraph  company  for,  501. 
Liability  of  telephone  company  for,  .")ir>. 
Liability  of  sleeping  ear  company  for,  529. 
Liability  of  postmasters  for,  535. 

* 

NEGROES, 

Right  of  on  vehicles  of  carrier,  377. 

NOTICE.     See  Common  Carriers  of  Goods. 

NOTICES.     See  LnirriNG  Liability. 

PASSENGER  ELEVATORS, 

Liability  of  owners  of,  for  injuries  to  persons  using  them,  533,  535. 

PASSENGERS.     See  Common  Carriers  of  Passengers. 
PAWN.    See  Pledge. 
602 


INDEX. 


The  Beferences  are  to  Pagei, 
PAYMENT, 

Extinjjuisliment  of  pledge  by,  116. 
PIGNU^f 

What  Is,  13. 

PLACARDS.    See  Limiting  Liauility. 
PLACE, 

At  What  phiw  may  chattel  be  demanded,  47. 
Of  delivery  to  coiutuou  can-ier,  178. 
PLEDGE, 

I'ledfjo  deniied,  93. 

Distiuctlou  betweeu  pledge  aud  chattel  mortgago  94 
What  thlng.s  may  be  pledged,  97. 
The  pledged  thing  is  security  for  what  debts  98 
The  pledgor's  title,  99. 
The  debt  or  engagement,  luo 
The  increas(>  and  profits,  100. 
The  pledgee's  right  of  transfer.  101. 
The  pledgee's  duties  in  regard  to  the  pledge  103 
'^'debf 'iw'  ''°  '''"'""'^^''^  ^■^'"^'^y;  P^^'isce  may  still  sue  for 
The  right  to  redeem.  105. 
The  pledgee's  duty  to  re-deliver,  105. 
The  pledgee's  right  to  sell  ou  default,  107,  110. 
Pledgee  cannot  purchase,  110. 
Irregular  sale  may  be  ratilied,  110. 
Power  to  sell  not  mandatary,  111. 
Pledgee  not  liable  for  consequences  of  sale,  when  112 
The  pledgor's  right  to  tlie  surplus,  113. 
The  pledgee's  right  of  action,  114. 
The  pledgor's  right  of  action,  115. 
The  pledge,  how  extinguislied,  IIG,  119. 
By  payment,  110. 
By  death  of  either  party,  119, 
By  release  or  waiver,  110. 
By  loss  or  destruction.  117. 
By  surrender,  117. 
By  limitation.  118. 
By  merger,  118. 
POSTMASTERS, 

Liability  of  for  loss  of  letters.  535.  540. 
PRESUMPTION.     See  also  Evidence. 

As  to  time  of  loss  of,  or  damage  to  goods  in  hands  of  carrier,  175. 

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INDBX. 

The  Btferenoes  are  to  P»ff«i. 

PROCBSS. 

Effect  of  seizure  of  goods  in  carrier's  bands,  194. 

PUBLIC  OFFICER, 

Bailee  of  property  in  bis  bands,  12. 
RECEIPTS.    See  Limitino  Liability. 
RECBIVKH, 

Liability  of  carrier  wbcre  road  in  hands  of,  428. 

RE-DELIVERY.    See  also  Common  Caurikus  ,of  Goods. 

Duty  of  bailee  to  rL>-deliver  chattel,  40. 

Delivery  to  wrong  person  by  mistalce,  47. 

At  what  place  muy  property  be  demanded,  47,  48. 

At  what  time  may  property  be  demanded,  48. 

Excuses  for  non-delivery,  49.  • 

Delivery  to  real  owner,  49. 
That  chattel  has  been  destroyed  or  lost,  50. 

The  pledgee's  duty  to  re-dellver  the  pledge,  105. 
RELEASE, 

Extinguisbment  of  pledge  by.  116. 
REPAIRS, 

Person  doing,  on  chattel  a  bailee,  22. 

Materials  added  by   workman,   become  property  of  owner  of 
chattel,  22. 
SALE, 

Distinction  between  sale  and  bailment,  19. 

Where  goods  are  sold  conditionally,  20. 

Right  of  pledgee  to  sell  pledge  on  default,  107,  110. 

By  bailee  of  balled  chattel  gives  no  title,  57. 

Power  of  sale  for  carrier's  charges,  291. 

SEQUESTRATION, 

What  is.  12. 
SLEEPING  OAR  COMPANIES, 

General  rights  and  duties  of,  516. 

Not  common  carriers,  51G. 

Not  liable  as  inn-keepers,  518. 

Contrary  view — sleeping  car  company  liable  as  an  inn-keeper,  519. 

This  view  sustained  in  Nebraska,  522. 

The  liability  of  the  sleeping  car  company,  529. 

STOPPAGE  IN  TRANSITU, 

Right  of  shipper   to,  287. 
SURRENDER, 

Extinguishment  of  pledge  by,  117. 

664 


INDEX. 

The  Befe*'eDcea  are  to  Payei. 
TBLEGRAPHS, 

Duties  and  obligations  of  tclcj,Taph  companioe,  495. 

Telegraph  company  not  an  lusurcr,  4!)7. 

Liability  of  telegraph  company  for  errors  In  transmission.  601. 

Action  may  bo  brought  by  addressee,  502, 

Limitation  of  liability  by  contract,  503. 

Conditions  contained  in  telegraph  blankS;  50.1. 

Connecting  lines,  liability  for  acts  of,  513. 

Contributory  negligence  of  sender,  514. 

TELEPHONES, 

Rights  and  liabilities  of  telephone  companies,  515. 

TICKETS.    See  Common  Caruikus  of  Pahsengeus. 
TERMINATION, 

Bailment  terminated  in  what  ways,  GO.  t)2. 

TIME, 

At  what  time  may  property  be  demanded,  48. 
At  what  time  Is  bailment  terminated,  GO,  Gl. 
Of  delivery  by  common  carrier,  270,  280. 

TIME  TABLES. 

As  contracts,  332. 

TITLE.    See  Sale. 

Bailee  may  not  dispute  bailor's  titlo,  38. 

Exception,  38. 
Distinction  between  pledge  and  chattel  mortgage  as  to,  93,  94. 
Title  of  pledgor  of  chattels.  00. 
Right  of  pledgee  to  transfer  pledge,  101. 

TRUSTEE, 

Liability  of  carrier  where  road  In  hands  of,  428. 

USAGES  AND  CUSTOMS, 

Of  place  or  trade,  relevant  on  question  of  care,  26,  27,  28. 

USE, 

When  bailee  may  and  may  not  use  balled  chattel,  42,  44. 

VADIUM, 

What  is.  13. 

VALUE, 

Of  chattel,  relevant  on  question  of  care,  26. 

WAIVER.     See  Common  Carriers  of  Pasbkngkrs:   Limiting  Lu- 

BILITY. 

Extinguishment  of  pledge  by,  116. 

665 


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INDEX. 

The  References  are  to  Pages. 

WAREHOUSEMAN, 

lleut  of  quartors  in  stora^o  warehouse,  when  a  bailment,  18. 
Liability  of,  for  neglect,  87. 

WARRANTY, 

Promise  to  return  chattel  in  "good  order,"  not  a  warranty,  30. 

WHARFINGER. 

Liability  of.  90. 

WORDS,  PHRASES  AND  DEFINITIONS. 

Act  of  God.  182. 
All  rail,  208. 
Article,  2G8. 
Bailment,  9. 
Bill  of  lading,  240. 
Call  at  ports,  250. 
C.  O.  D.,  20U. 
Common  carrier,  141,  298. 
Damage,  250. 

Dangers  of  the  roads,  251. 

Dangers  of  the  seas  and  perils  of  navigation,  251. 
Deficiency  in  quantity,  2.")9. 
Depot,  2G9. 

Extraordinary  marine  risk,  2G0. 
Fire,  200. 

Feed,  water  and  take  proper  care,  270. 
Fire,  270. 

Free  passenger,  349. 
Good  order  and  condition,  2G0. 
Guest,  128. 

Housoliold  goods,  270. 
Invoice  value,  202. 
Invcluntary  dopo.sit,  11. 
Innkeeper,  125. 
Leakage  and  breakage,  202. 
Lien,  .")5. 

Load  and  unload,  270. 
Loss,  271. 

Necessary  deposit,  11. 
Negligence.  20. 
On  Lakes  and  Rivers.  263. 
On  the  train,  271. 
Package  or  thing,  271. 
Paf^senger,  303. 
606 


Its      : 


lent,  18. 


arranty,  30. 


INDEX. 

The  References  are  to  Pages. 

WORDS,  PHRASES  AND  DEFINITIONS- Contmued. 
Perishable  property.  272. 
Pilot,  master  or  mariners.  263. 
Place  of  dcstinatioi,  272. 
Pledge,  92. 

Port  of  discharge,  203. 
Privilege  of  re-shipping,  2(j3. 
Public  enemy,  192. 
Quantity  guaranteed,  2G4. 
Ready  to  discharge,  205. 
Restraints  of  princes,  2GG. 
Robbers  and  thieves.  2GG. 
Tow  and  assist  vessels,  2G7. 
Through  without  transfer.  273. 
Transit,  273. 

Unavoidable  or  inevitable  accident,  273. 
Value  or  cost,  274. 
Value  and  contents  unknown,  2G7. 


667 


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